California’s handling of COVID-19 has been a statewide tragedy and a national embarrassment. pic.twitter.com/zr4wooLeLA— Kevin Kiley (@KevinKileyCA) December 8, 2020
The Ruling Against Newsom is Final
Last night we received the news that Judge Heckman’s ruling in our favor is now final.
She refused Newsom’s request to delay the Permanent Injunction against him: “The Governor’s request for stay of enforcement of the judgment is denied.”
You can read the final ruling here. The Judge brushed aside Newsom’s attempt to change her prior decision, noting that his additional filings rehashing failed arguments raised “no additional principal controverted issues.”
The ruling calls the case a “critically important one for the Judicial Branch to resolve” given that the State of Emergency “continues in effect, indefinitely.” Assemblyman Gallagher and I released the following joint statement:
“Today, the Court confirmed that Gavin Newsom does not rule California and that we are still a nation of laws. California has not been well-served by one-man rule. A return to representative government will be best for public health and the economy. The Governor must accept this ruling as a fundamental principle of our democracy and govern himself accordingly.”
Newsom’s Ominous Plans
Gavin Newsom has asked the Judge to put the Permanent Injunction against him on hold for “a minimum of two weeks.” Which makes me wonder what he has in mind for the next two weeks.
We’ve filed a strong objection to any such free pass from the Constitution. Yet at the very moment his one-man rule is finally starting to give way, Newsom is ruling more recklessly than ever. Using his colored-coded “Blueprint,” the Governor just whipsawed 11 counties backwards, again closing businesses and schools.
At the same time, Newsom himself was caught attending a crowded birthday party for a lobbyist at the French Laundry, a $350/plate restaurant in Napa, and he has sent his own children back to in-person private school.
As he ignores his own guidelines, Newsom still refuses to provide evidence they do any good. The California Business Roundtable has repeatedly asked him for actual data “that would show how business openings have affected COVID rates and transmission,” and Newsom’s own Health and Human Services Secretary admitted opening schools hasn’t spread the virus.
Other states have learned from the data. According to the New York Times, California is one of only a handful of states with the most severe business closures; according to CNN, we’re one of only seven with a school closure order. And Newsom is the only Governor that would even think of ordering lockdowns to enforce a phony notion of “equity.”
The good news is the Blueprint is susceptible to a legal challenge under our Permanent Injunction, which restrains the Governor from making “legislative policy.” A new lawsuit is now moving forward precisely on this basis, and I’ve heard from a number of other groups preparing their own challenges.
To reinforce this legal action, we’re working with counties to join forces on a Healthy Communities Resolution rejecting the Blueprint and school closures. Once the Legislature finally returns in a few weeks, I’ll be immediately introducing statewide legislation to that effect.
When not at the French Laundry, Newsom is spending his time comparing the leader of the U.S. Senate to a “jellyfish, coral, slug, snail, or octopus.” He was also forced to delete a video he tweeted attacking Amy Coney Barrett when it was shown to be fake news. Such petty partisanship reached a perverse level when the Governor released a spurious chart ranking “red” and “blue” states by COVID cases.
Of course, Newsom’s COVID-19 response has been political from the start. You may recall he celebrated coronavirus as the dawning of a “new progressive era” and an “opportunity to reshape the way we do business and how we govern.” He then appointed the nation’s single largest partisan donor, vanity presidential candidate Tom Steyer, to head California’s economic “recovery.”
If we’re to have a true recovery – not only from the nightmare of this year but from decades of decay – it must rest on a foundation of honesty and decency, of respect for the Constitution and the rule of law. That means rooting out corruption, eschewing partisanship, bringing people together, and reviving self-government. It means, above all, trusting and respecting the people of California.
In Gavin Newsom, it’s hard to imagine a more striking foil.
Newsom Tries To Halt Court’s Ruling
Today Gov. Newsom plans to close businesses and stop schools from opening, even though yesterday he didn’t say either was responsible for new cases. This erratic leadership is why California is struggling as much as any state.
Meanwhile, Newsom says he will appeal the Superior Court’s ruling against him “as soon as permitted.” He’s also “renewed” his previously rejected request that the Permanent Injunction be put on hold “pending appellate review” or for “a minimum of two weeks.” Even a moment’s relinquishment of his autocratic powers is intolerable, apparently.
To top it off, Newsom has presented Judge Heckman with a table running 5 pages, with the left column quoting parts of the Judge’s decision paired with a right column lecturing as to why he thinks she’s wrong. Trouble is, the Governor simply rehashes the same meritless arguments she already rightly rejected.
You may recall, incidentally, that Newsom had the first Judge who ruled against him in this lawsuit ousted from the case, claiming without evidence that the Judge was “prejudiced against his interest.”
We’ve filed a response to this strange document, and Judge Heckman’s ruling will become final on Thursday. After it does, we’ll make it clear which of Newsom’s existing orders run afoul of the decision. You can see the 150-page list of all of those orders and the laws they’ve changed here.
But what about the most damaging order, the arbitrary and unscientific lockdown scheme, which he’s using today to impose more restrictions on several counties? The good news is it’s newly vulnerable. The Pacific Legal Foundation’s new lawsuit uses the same separation-of-powers argument our victory established as a successful legal theory:
“This color-coded Blueprint is complex in its mechanics and sweeping in its implications for businesses throughout the State. Business owners were left without a represented voice, as the Governor decided fundamental public policy for the State. This continuing exercise of one-man rule violates separation of powers because only the Legislature is allowed to make these kinds of fundamental policy determinations under the California Constitution.”
Newsom knows that Judge Heckman’s decision – his first loss in court – stops him from ruling California by decree and is a powerful tool for peeling back every oppressive layer of his self-proclaimed autocracy.
That’s why he’s so impatient to appeal, why he’s desperate to get the ruling put on hold, and why his spokesperson immediately put out a press release saying Newsom “strongly disagrees” with the “specific limitations” placed on his emergency powers.
We are preparing for the appeal, which we expect could quickly find its way to the California Supreme Court. But Newsom may want to be careful what he wishes for. Even if he somehow “wins” on appeal, that could possibly lead to a worse outcome for him, including the termination of the State of Emergency itself.
The Effect of the Court’s Ruling
Many people have asked if our court victory over Governor Newsom is a precedent to challenge the lockdown. The answer is yes: the Pacific Legal Foundation just filed a lawsuit using the same legal theory to invalidate the color-coded “Blueprint.”
But before getting to that, here’s how Newsom responded to the ruling: “We strongly disagree with specific limitations the ruling places on the exercise of the Governor’s emergency authority.”
He can see that this is the end of his one-man rule. That’s because, simply put, Judge Heckman’s ruling is a home run. In a thorough and well-reasoned opinion, she agreed with us on every issue:
- Newsom tried to get out of the case on a technicality, arguing that it was moot. But Judge Heckman held it was not “for two distinct reasons.”
- Newsom argued that the Emergency Services Act transforms California into an autocracy and places all powers of the State in his hands. But Judge Heckman held that its “plain meaning” does not “give the Governor the power to legislate.”
- Newsom argued against any restraints on his future conduct. But Judge Heckman found good cause for a Permanent Injunction because it is “reasonably probable the Governor will continue issuing executive orders…violating the California Constitution.”
- Newsom argued the ruling should be put on hold while he appealed. But Judge Heckman has not done that.
So what is the effect of the ruling? Let’s start with the obvious.
First, it’s what the LA Times called a “rebuke” of Governor Newsom. The Judge found that several of his orders had no basis in law whatsoever.
Second, it’s a vindication of the rule of law. In a column about the ruling, Dan Walters writes that Newsom’s unlawful conduct is “ironic” when he at the same time “demands that 40 million Californians obey his pandemic decrees, such as shutting down small businesses.”
Third, the ruling restrains Newsom from issuing further unconstitutional orders. Here is the text of the Permanent Injunction:
Gavin Newsom, in his official capacity as Governor of the State of California is enjoined and prohibited from exercising any power under the California Emergency Services Act which amends, alters, or changes existing statutory law or makes new statutory law or legislative policy.
This means that if Newsom continues to rule by fiat, issuing decrees that amount to new laws or policies, he could be held in contempt of court.
Fourth, the ruling calls into question many of Newsom’s orders. Judge Heckman rejected his argument that Section 8627 of the Emergency Services Act gives him autocratic powers. At least 24 of his Executive Orders rely on that section.
Fifth, it creates a precedent to challenge Newsom’s more far-reaching restrictions, including the lockdown orders. You can see the Pacific Legal Foundation’s new lawsuit here, which is based on our successful separation-of-powers legal theory.
After Judge Heckman’s ruling becomes final next Thursday, Newsom has 60 days to file an appeal. While many expect the case to end up in the California Supreme Court, we are confident the ruling will stand and that the era of one-man rule in California is over.
We’ve Won Our Case Against Governor Newsom
Today, a California Superior Court ruled in favor of me and fellow legislator James Gallagher in our lawsuit challenging Gavin Newsom’s abuse of power. You can read the ruling here.
The Judge ruled that Governor Newsom violated the State Constitution by issuing Executive Order N-67-20. More importantly, she found good cause for a permanent injunction restraining the Governor from issuing any further unconstitutional orders:
The Court rejected Newsom’s extraordinary claim that a State of Emergency turns California into an autocracy and “centralizes the State’s powers in the hands of the Governor.” This is the unlawful basis on which Newsom has collapsed California’s system of checks and balances, issuing 57 Executive Orders and changing over 400 laws unilaterally.
It’s a “tentative ruling,” meaning Newsom has a few days to try to persuade the Judge to change it, but that rarely happens. While Newsom can appeal, we are confident the decision is on solid legal ground and will stand.
The era of one-man rule in California is over.
Four Possible Outcomes of Wednesday’s Trial
Our trial against Governor Newsom is at 10 AM this Wednesday. The court will live stream the proceedings here.
I am an optimist, but also a realist. So while I feel good about our chances, I want to acknowledge there are several possible outcomes.
At this point, I am under no illusion that a moral victory will be satisfactory. With so many people in the throes of Gavin Newsom’s runaway one-man rule, there are no consolation prizes. We need a win.
That said, by submitting Newsom to a trial for the first time, we’ve already established something important: that the other two branches of government still very much exist. That we as legislators have standing to challenge the usurpation of lawmaking authority. That when the Court rules, the Governor must obey.
To Newsom’s chagrin, this case has affirmed the maxim set down by John Marshall, our nation’s first Chief Justice: “It is emphatically the province and duty of the judicial department to say what the law is.”
So this Wednesday, what will the Judge say the law is? I see four possibilities.
Outcome 1: Newsom wins. Obviously, this is the worst outcome, although we could appeal. He could prevail either on the merits or on a technicality.
Outcome 2: We win a narrow victory. This is where Newsom has started to place all his chips. In his Trial Brief, he barely even tries to defend the legality of his conduct. Instead, he implores the Court to limit its ruling to one Executive Order – in a word, damage control.
In our view, that’s insanity. Our Complaint clearly asks for a permanent injunction against all such unlawful orders. While this outcome would still have value, affirming that the Governor isn’t above the law, it is not what we are hoping for.
Outcome 3: We win a full victory. This would “enjoin the Governor from further exercising legislative powers in violation of the California Constitution.” Newsom would be legally restrained – the only antidote to his historic lack of self-restraint.
A number of his previous orders would immediately be exposed as unlawful, while others may become newly vulnerable. As a matter of law, our republican form of government would be vindicated.
Outcome 4: The Emergency Services Act is ruled unconstitutional. At the last hearing, Newsom’s lawyer himself said this is “one of the possible outcomes of the case.” It would result in the immediate termination of the State of Emergency and all emergency orders.
While this is not the most probable initial outcome, if it did happen, Newsom would seek an immediate stay of the ruling while he appealed. The constitutional question is one that would inevitably be decided by the California Supreme Court – which may be where this case ends up, one way or the other.
Final Briefs Filed For Trial Against Newsom
We’ve just filed our Trial Brief, which is a 20-page outline of the case we plan to present. Gavin Newsom also filed his. The trial will take place next Wednesday, 9 AM, at the Sutter County Courthouse.
I’ve posted the full Trial Brief here, along with our other filings. This brief and all prior briefs were written and argued by me and Assemblyman Gallagher alone, representing ourselves in pro per.
While we could have hired outside lawyers, we’ve felt compelled to personally stand up for our branch of government, and more importantly, for the people of California we were elected to represent.
That’s because this case is not about one particular law, but the rule of law – not about rectifying a single violation of the Constitution but redeeming the whole document.
While the idea of a lawyer-legislator has rich veins in American history, it’s taken on a new meaning in this most lawless of times. Yet Gavin Newsom seems to think this all merits scorn.
In his own Trial Brief (which his attorneys wrote and he approved), he offers this potshot: “Though Plaintiffs claim to be guardians of the Legislature’s authority, notably, unlike in Michigan, the California Legislature as a body has not joined Plaintiffs’ lawsuit.”
He’s got a point: California’s Legislature has been much more useless than the one in Michigan or pretty much anywhere. Its leaders, far from reining in Newsom’s abuse of power, have taken most of the year off.
So it’s fallen on two members of the “super-duper” minority to stand up and do something about it.
His snide remarks aside, Newsom’s Trial Brief employs the same old scare tactics, claiming that that if we win his powers will be rendered “toothless” as the “earthquake, fire, or pandemic is raging.”
Our response is simple: past Governors have handled such events without declaring themselves autocrats, collapsing our republican form of government, and turning our communities upside down.
And our legal argument is just as simple: Either (a) Gavin Newsom has continually violated the Emergency Services Act or (b) the whole Act is unconstitutional. There is no option (c).
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Cross-Examining the Newsom Administration
For months, I’ve asked for oversight hearings of the Newsom Administration’s botched COVID policies. Finally, the Legislature relented and granted my request.
In hearings at the Capitol, I cross-examined four top Administration officials about the monstrous school closures, the color-coded shutdown scheme, the disastrous data “glitch,” and the false COVID information that Newsom admits he gave the public.
Their responses were even more disturbing than I expected. Video clips of each cross-examination here and below.
School Closures: Yesterday I questioned State Superintendent Tony Thurmond, who tipped his hand that the plan is to keep most schools closed the entire year or longer. He breathlessly cited “new data” that “COVID could be with us well beyond 2021.” Incredibly, when I asked him to disavow keeping schools closed for reasons unrelated to COVID, he wouldn’t even do that.
Business Shutdown: I questioned the state’s Public Health Officer about the arbitrariness of the latest color-coded system. She as much as admitted the Newsom Administration’s lockdown of whole counties is based not on science or what’s actually happening in the real world, but on what’s easiest to administer.
Data Glitch: After a data “glitch” compromised California’s COVID case data, Gavin Newsom disappeared for a week and his Public Health Director resigned. I asked Newsom’s Chief Information Officer why the Administration failed to prepare for large volumes of lab tests when Newsom famously projected 25 million California cases. His response: “I’m not sure, I can’t really answer it.”
Newsom’s Misinformation: Finally, I asked the Chief Deputy Public Health Director why Gov. Newsom himself presented false COVID data to the public even after the Administration knew about the data glitch. “That is one of the quality control issues we have put back in place,” I was told.
In a way, I feel sorry for these Administration officials. In explaining Gavin Newsom’s job performance, they are forced to defend the indefensible.
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Judge’s Ruling Against Newsom Sets Stage for Trial
“It is ordered that Defendant’s motion for Judgment on the Pleadings is DENIED.”
–Order of the Honorable Sarah Heckman,
Superior Court Judge
For months, Gavin Newsom has executed a legal strategy with one goal: to wiggle out of our case on a technicality. The Court just put a definite kibosh on that.
With the Judge rejecting Newsom’s motion, the trial in Gallagher and Kiley vs. Newsom will proceed on October 21 at the Sutter County Courthouse.
To seal our win on this issue, I give great credit to my co-plaintiff and co-counsel James Gallagher, who found a smoking gun on Secretary of State Alex Padilla’s website (which was mysteriously hidden after he discovered it) that proved beyond any doubt that what the Governor was arguing was factually untrue.
This is the same Secretary of State, by the way, who bizarrely attacked us for “throwing our democracy into chaos” when we won a preliminary injunction against Newsom in June.
As for our own motion, it wasn’t granted – but that’s not too surprising. It’s very rare to win a case through a dispositive motion; as the plaintiff, you usually just want to avoid losing. Our main goal was to fend off Newsom’s dismissal ploy while keeping the focus on his unlawful conduct.
So Wednesday’s hearing worked out quite well. The Governor played (and surrendered) his one and only card, while we set the stage for trial by previewing our case against his one-man rule.
We have a pre-trial conference on Monday with the Governor’s lawyers, and then we’ll be working nonstop for the next week and a half to prepare our exhibits, witnesses, and trial presentations.
Will we win on Oct. 21? I am hopeful. I resolutely believe that the law, the facts, and the people of California are on our side. Still, it’s impossible say what the Judge will decide.
One thing we can say for sure: if the courts don’t rein him in, Gavin Newsom will keep ruling California by decree. Our state will slide further into autocracy. Our civic institutions will be grievously, perhaps permanently, damaged. And millions of Californians will continue to pay the price.
That’s the battle we are in. I cannot tell you how grateful I am for your overwhelming support, words of encouragement, and prayers. It’s uplifting and emboldening beyond measure. With so many forces arrayed against us, it reminds me every day what we’re fighting for.
Today We Faced Off with Governor Newsom in Court
At 9 AM this morning, we faced off with Gavin Newsom’s attorneys at the Sutter County Superior Court. I think it went well. A ruling is expected by the end of the week.
We weren’t alone. Patriotic Californians from all across the state gathered at the courthouse. Below is a short video of the scene when I arrived.
After dispensing with some motions on the admissibility of evidence (the Judge ruled in our favor), I presented the argument for our dispositive motion. Here’s how I described the autocratic power Newsom has assumed:
“It’s a form of power that was consciously rejected by the framers of the California and U.S. Constitution and has been heroically resisted by every generation since, through every conceivable natural or manmade disaster or calamity.
“Today we ask this court to restrain a form of power that exalts the will of one man above all – above our sacrosanct founding documents, above our carefully nurtured institutions, above the rule of law itself.“
So what’s going to happen? There are three possibilities.
First, the Judge could grant the Governor’s motion, which would let him wiggle out of the case on a technicality. I’d be surprised if that happened, as the Judge sounded very skeptical of his arguments.
Second, the Judge could grant our motion and we win the case. Obviously, we hope for a broad injunction restraining the Governor’s illegal conduct, but even a more narrow victory will be a major blow to his one-man rule and an important precedent.
Third, the Judge could rule that the case cannot be decided on the motions, and we will move ahead with the Oct. 21 trial date.
One thing that is clear: in the wake of the Michigan Supreme Court decision, the Governor is very worried about the whole Emergency Services Act being declared unconstitutional. The Judge quickly swatted down his one argument for why California’s law is different from Michigan’s.
If this were to happen, it would invalidate all of his emergency orders. His lawyers are so worried they even asked to be able to immediately appeal if the Act is declared unconstitutional. While I’ll stress that this is not the most probable initial outcome of the case, it is on the table.
After the hearing, Assemblyman Gallagher and I had a chance to briefly address the folks who were still at the courthouse. You can below.
Next Week, Newsom’s One-Man Rule Faces A Legal Reckoning
After hundreds of pages of briefing, the parties will face off in Court on Oct. 7 in the case of Gallagher and Kiley v. Newsom. At issue: the legality of Newsom’s one-man rule.
Assemblyman Gallagher and I are representing ourselves, in pro per, and we have challenged Governor Newsom and Attorney General Becerra to likewise show up themselves for this important public debate.
With our Oct. 21 trial date looming, here’s what this hearing is about: As we long expected, Newsom filed a “Motion for Judgment on the Pleadings” based on “mootness.” He wants to get out of the case on a technicality.
That’s been his strategy from the get-go: delay, delay, delay; escape the legal reckoning he justly deserves and that the Constitution demands; then, go right on ruling California by fiat.
But here’s what he didn’t expect: We also filed a Motion for Judgment on the Pleadings. That means that we could win the case on Oct. 7 and get an Order restraining further abuses of power.
The Governor’s discombobulation is clear from the cynical, bizarre, irrelevant, and misleading arguments he made in his 20-page Opposition Brief filed on Monday:
- Scare tactics: He claims our lawsuits threatens to “throw into chaos current efforts to combat the wildfires now burning across the State.”
- Deception: Repeatedly, his brief selectively quotes provisions of California law, editing out legal limitations on his own power in hopes that the Court won’t notice.
- Diversions: He devotes much of the brief to refuting a legal theory we didn’t even advance.
- Lawlessness: He describes Separation of Powers as “flexible” and “pragmatic,” some airy-fairy theory where anything goes, so he can claim a roving one-man lawmaking authority that is foreign to the Constitution and republican government itself.
To head off Newsom’s delay tactics, we insisted on an accelerated schedule where we had just 48 hours to file a Reply Brief. Then he waited until the last possible moment to file his Opposition so we wouldn’t have a second more time.
But we still filed a blistering Reply Brief yesterday as our closing argument.
“Our Opening Brief warned of the dangers of an extended State of Emergency, with a Governor apt to ‘fall into the habit of acting unilaterally’ even for non-emergency purposes. As if to prove the point, on September 24 Governor Newsom issued a unilateral Executive Order banning gas-powered vehicles by 2035. In the Order, he did not cite the Emergency Services Act – a chilling sign that seven months into this emergency, lawmaking by decree has become normalized. The time for a judicial check has arrived, as has already occurred in numerous other states.”
If the Judge grants the relief we are seeking, it will restrict the Governor from further unconstitutional orders and serve as an important precedent for bringing this whole nightmare to an end.
If neither dispositive motion succeeds, then we proceed to trial on Oct. 21.
Newsom Tries to Exploit the Fires
Gov. Newsom has just claimed, without evidence, that our lawsuit against him threatens to “throw into chaos current efforts to combat the wildfires now burning across the State.” Such scare tactics are of course a favored authoritarian tool.
Yesterday, 33 fresh pages of briefing arrived from Newsom in his final volley before we face off in court. This will be a short post, as we now have 48 hours to write a Reply Brief.
Newsom’s threat about the fires is a cynical, thinly veiled attempt to strike a chord with a Northern California court at a time of untold suffering in the region. It shows the shamelessness with which the Governor has conducted this litigation, and his eagerness to grab at any pretext for power.
Firefighting, of course, is a clear executive function in response to a clear emergency. Our lawsuit has nothing to do with that: its aim is stop Newsom from using the charade of “emergency powers” for his own political purposes unrelated to any emergency.
We are demanding the restoration of constitutional government after seven months of its total collapse.
This is more needed than ever, as Newsom continues to literally erase the Constitution. His brief claims the State of Emergency lets him exercise “the full police power of the state,” but he leaves out the end of the sentence he’s quoting, which says these powers are confined by “the Constitution and laws of the State of California.”
Newsom even repeats his out-and-out proclamation that California is now an autocracy: “the Emergency Services Act centralizes the State’s powers in the hands of the Governor.”
Yet despite all of this, he has the temerity to say that his actions are “the opposite of a unilateral power grab.”
We plan to serve the Governor with a blistering Reply Brief on Wednesday. Then we’ll see him in court.
Newsom Torches the Constitution
This is why we are suing Gavin Newsom. He’s perfectly willing to torch the Constitution to grab a few headlines.
On Wednesday, Newsom issued his most lawless Executive Order yet, banning gas-powered vehicles by 2035. “California will be leading the nation in this effort,” he crowed about an edict that no one voted on it – not the Legislature, not the people of California.
Here’s what happened: Newsom wanted to ban millions of cars, so he just did it. That is specifically what our entire system of government is designed to prevent.
Not only does Newsom’s Order make a mockery of the separation of powers in California’s own Constitution, it also flagrantly defies federal law in violation of the Supremacy Clause of the U.S. Constitution.
We are also immediately bringing this to the attention of the Judge in our lawsuit. Last week we told the Superior Court that Newsom has used the State of Emergency to normalize one-man rule, issuing unilateral decrees “as a default mode of operation.”
This latest Executive Order is now Exhibit A. Newsom didn’t even bother to invoke “emergency powers.” Autocracy is just the new normal in California.
As to the substance of the Order: the future of clean energy is being driven by entrepreneurs and innovators – not vainglorious politicians like Gavin Newsom. He’s just getting in the way by pursuing policies in the most divisive, heavy-handed, and self-promotional way.
Meanwhile, Newsom ignores the backwards regulations and botched forest management that are most responsible for catastrophic wildfires, which have brought so much devastation to so many Californians.
Imagine how much more tolerable 2020 would be if we had a Governor who treated the people of California with half as much solicitude as the national press corps.
Newsom Tries to Wiggle Out
Earlier this week, we filed our dispositive motion to end Gavin Newsom’s one-man rule. You can read our brief here.
Now, Newsom has filed his own motion to try to wiggle his way out of court, arguing separation of powers is “academic.” So we’ve had to file another 15-page Opposition Brief to deal with this Hail Mary.
There’s an old saying: If you have the facts on your side, pound the facts. If you have the law on your side, pound the law. If you don’t have either, pound the table.
Gavin Newsom knows the facts and law are against him, and his self-proclaimed autocracy faces a reckoning in a matter of weeks. So he’s frantically pounding the table.
Actually, he’s been pounding it for some time. In this case, Newsom has gone to extraordinary lengths to escape judgment. In a fit of spite, he even had the judge who ruled against him removed from the case.
His latest motion bizarrely claims our case is “moot,” meaning “obsolete,” “beside the point,” or an “abstract proposition” of only “academic interest.” Last I checked, the State of Emergency was still in effect. For 40 million Californians, that is anything but an abstract or academic matter.
So far, none of these antics have worked. Our dispositive motion will be heard in a matter of weeks, and trial is set for Oct. 21.
Gov. Newsom knows he’s been caught red-handed. While he’s been abusing his powers left and right, with Executive Order N-67-20 that is easily proven. Courts are generally reluctant to rein Governors in, but with this order the case is clear-cut. That’s why ours is the one case in California where a court has ruled against the Governor.
The relief we are seeking would end Newsom’s ability to monopolize all powers of government for himself and unleash them on the people of California. As we say in our Opposition Brief, “The Complaint on its face encompasses broader relief to enjoin Defendant’s future usurpations.”
In other words, a final judgment in our favor will create the legal precedent for ending Newsom’s one-man rule.
That’s why the stakes are so high. This is our best chance to check Gavin Newsom’s executive overreach and see that our republican form of government is never again brought to the point of collapse by a runaway Governor.
The Case Against Governor Gavin Newsom
We’ve just filed our dispositive motion with the California Superior Court. Our brief sets forward the clear legal argument against Gavin Newsom’s one-man rule. You can read the entire brief here.
Assemblyman Gallagher and I are representing ourselves, in pro per. We are asking for a court order stopping the Governor from further exercising any “legislative powers in violation of the California Constitution.” Here’s how our 15-page brief begins:
“In the case before the Court, Defendant Gavin Newsom declares that the six-month-and-counting State of Emergency centralizes the State’s powers in the hands of the Governor. This disquieting claim belies California law and defies America’s first principles.”
We then set forth the constitutional basis for the Court to step in:
“The authors of California’s Constitution learned the lesson of America’s founding even better than the Founders themselves, enshrining an explicit separation-of-powers provision. A California Governor is constitutionally forbidden from doing the very thing Gov. Newsom has done here: exercise legislative powers.”
Our brief then turns to the unprecedented abuses of this year:
“California has entered its seventh month of the COVID-19 pandemic, with no apparent end in sight. In addition to sweeping ‘guidance documents’ that close schools and shutter businesses, Governor Gavin Newsom has issued 53 Executive Orders that span 15 different California Codes and change over 400 state laws.”
And here is the crux of the legal argument: the Emergency Services Act does notauthorize the Governor’s unconstitutional actions.
“Contrary to the Governor’s claim, the Emergency Services Act does not and could not inaugurate an autocracy in the State of California. Such a wild misapprehension of his own authority is precisely why this case demands a resolution on the merits.“
We then make it clear to the Court what’s at stake: our very system of government and way of life.
“There is perhaps no action more offensive to the rule of law, no threat to liberty more menacing, than the use of extraordinary emergency powers for ordinary political purposes. History shows that the decline of republican government comes not just from the sudden arrival of Caesar but from a steady erosion of institutions and traditions.
It’s now up to the Court to restore checks and balances in California. But it’s up to the people of California to send a strong message to Newsom this November.
With the failures of our state’s politicians on horrifying display, now is the time to alter California’s political trajectory and restore government of, by, and for the people.
Our Court Case Against Newsom is Set for Trial
A California Superior Court has set the date for the trial in our case against Gavin Newsom.
The trial begins at 9 AM on October 21 at the Superior Court of California, County of Sutter, 1175 Civic Center Boulevard.
The case of Gallagher and Kiley v. Newsom is about more than one unlawful Executive Order. It’s about making Gov. Newsom answer for his illegal one-man rule.
It’s about vindicating the constitutional checks and balances that have served our country so well for 233 years.
These last five months, the genius of our Founding Fathers has given way to the recklessness of our floundering Governor. This case is our best chance to restore the rule of law, check and balances, and representative government.
Governor Newsom is understandably nervous. Ours is the first case where he’s suffered a loss in court, with a Judge issuing a Temporary Restraining Order against him in June.
That’s why his cavalcade of lawyers at the Attorney General’s Office has worked frantically, pulling out all the stops, to delay this legal reckoning. He even ousted from the case the Judge who ruled against him.
Further, the Governor knows that an adverse outcome at trial will be the coup de grâce in his failed pandemic response.
With California having the most COVID cases and the worst economy of any state, Newsom now faces the ultimate blot on his record: a court finding that he put our Constitution through a paper shredder.
Getting a trial date before the election was a major victory for us, as the Executive Order at issue overhauled the election unilaterally. If trial was delayed until after Nov. 3, as Newsom desperately hoped, he would have argued the issue was moot as a way to escape judgment.
The trial will be open to the public, and Assemblyman Gallagher and I will be representing ourselves.
Well, we’ll be representing ourselves in the technical legal sense – but really, we’re representing the people of our state against a runaway Governor who’s left 40 million Californians without a voice in their own government.
Gov. Newsom Has Unilaterally Changed Over 400 Laws
Below is a 138-page PDF document most of us thought we’d never see, at least not in this country.
It lays bare the anatomy of one-man rule, listing every Executive Order Gavin Newsom has issued, every law he’s changed.
It’s a testament to the collapse of constitutional government in California. These are the raw numbers:
- 1 Emergency Declaration
- 188 Days
- 53 Executive Orders
- Over 400 laws changed
Of the well over 400 laws he’s amended, suspended, or overhauled since declaring a State of Emergency on March 4, each one was duly enacted through the legislative process set out in the Constitution. And each one was undone by Newsom with the stroke of a pen.
He’s also created countless new laws out of whole cloth – something not even the Emergency Services Act allows.
This is not a democracy. It’s a monarchy.
While it was a public health emergency that Newsom declared, he has not stuck to the Public Health Code. The tentacles of his reign reach into 16 other codes, touching nearly every facet of California life:
Businesses & Professions, Civil Procedure, Corporations, Education, Elections, Family, Financial, Government, Harbors & Navigation, Health & Safety, Labor, Public Resources, Revenue & Taxation, Unemployment Insurance, Vehicle, and Welfare & Institutions.
Our Founders had good reasons for rejecting autocratic models of government in favor of separation of powers, checks and balances, and the rule of law – all of which Gavin Newsom has discarded.