The Merriam-Webster Dictionary defines “emergency” as “an unforeseen combination of circumstances or the resulting state that calls for immediate action.” California law defines “state of emergency” as “the duly proclaimed existence of conditions of disaster or of extreme peril to the safety of persons and property within the state … .”
By definition, an emergency isn’t permanent. If the terms “disaster” and “extreme peril” are to have any meaning, they can’t apply to the day-to-day risks of living.
The California Emergency Services Act defines “local emergency” as well as “state of emergency,” and it specifically limits the length of time that a local emergency declaration may be in force.
However, Gov. Gavin Newsom’s March 4 declaration of emergency waived those time limits.
Newsom has asserted that he has the power under the CESA not only to suspend laws during an emergency but also to write new laws and amend existing laws. This is currently the subject of a court battle. Assembly members Kevin Kiley, R-Rocklin, and James Gallagher, R-Yuba City, filed a lawsuit challenging the governor’s power to issue executive orders that unilaterally change the law.
Round one went to Kiley and Gallagher. Sutter County Superior Court Judge Sarah Heckman ruled that the California Emergency Services Act does not give the governor the power to make or amend laws. “That is exclusively a legislative function not delegated to the governor under CESA,” Heckman wrote.
“Before our trial no California court had ever ruled a Governor abused his authority,” Kiley wrote in a blog post. “The reason for that, of course, is that never before have we had a nine-month State of Emergency, never before have we had a Governor literally declare himself an autocrat, never before have we had such a pressing need for judicial intervention.”
The governor has asked the Court of Appeals to reverse the lower court ruling. Newsom contends that limiting his power to create new laws on his own “threatens California’s COVID-19 emergency response efforts,” according to a spokesman.
If the Court of Appeals and eventually the state Supreme Court agree with the governor, then California will be under a state of emergency until the governor decides he’s ready to give up absolute power, or until the Legislature decides to act. The California Emergency Services Act authorizes the Legislature to declare that an emergency has ended.
Sen. Melissa Melendez, R-Lake Elsinore, introduced a resolution to do exactly that, but it didn’t go anywhere in the Legislature, which is under the super-majority control of the governor’s political party.
Regardless of the seriousness of the COVID-19 threat, there’s a significant problem with allowing government officials to exercise unlimited power for an unlimited period of time, based on metrics that they invent themselves, and then reinvent, without any accountability or oversight.
There’s also no transparency. The trade associations that represent restaurants, retailers and amusement parks have complained openly, if diplomatically, that the state has not shared its data or evidence that their businesses are responsible for the spread of COVID-19. It is likely that no such evidence exists.
The California Emergency Services Act requires the governor to end the state of emergency sooner rather than later. “The governor shall proclaim the termination of a state of emergency at the earliest possible date that conditions warrant. All of the powers granted the governor by this chapter … shall terminate when the state of emergency has been terminated.”
That means all the executive orders issued under the emergency declaration become null and void. It means contracts have to be awarded through the legal process, not by executive fiat. It means everybody regains any legal rights, and the use of public facilities such as beaches and parks that they lost when the declaration of emergency was signed.Some people are getting tired of waiting. A new initiative has been filed for a future election that “prohibits state and local officials from issuing enforceable orders, regulations, or ordinances to address public health emergencies” in ways that “directly affect the operation of private businesses or public facilities (including beaches and parks), or that limit the exercise of individual liberties.”
Don’t be surprised if petitions for Initiative 20-0004 are soon available for signing at a restaurant or retailer near you.
Susan Shelley is an editorial writer and columnist for the Southern California News Group. Susan@SusanShelley.com. Twitter: @Susan_Shelley
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End Gavin Newsom’s emergency powers sooner than later - OCRegister
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