In the Daily Journal, Daniel Kolkey urges the Supreme Court to grant review in Newsom v. Superior Court and to use the case to circumscribe the Governor’s emergency powers. (“State high court should decide whether governor can legislate.”) The case involves emergency gubernatorial executive orders in general and, specifically, a Governor Gavin Newsom executive order, issued near the beginning of the pandemic under the California Emergency Services Act, that required all California voters be mailed a ballot for last year’s election.
The Court of Appeal’s published opinion in the writ proceeding held that the Act did not “prohibit the Governor from issuing quasi–legislative orders in an emergency” and that “the issuance of such orders did not constitute an unconstitutional delegation of legislative power.”
Kolkey disagrees with the opinion, saying the executive order violated the California Constitution’s separation of powers provision because the Governor was using the state’s police powers to legislate. “[I]t was one-person rule, robed in republican principles, that ultimately ended the Roman Republic,” Kolkey writes.
Some pertinent trivia: The criticized Court of Appeal opinion comes from the Third District, where Kolkey served as a justice from 1998 to 2003. He and the opinion’s author, Presiding Justice Vance Raye, were colleagues. Also, Kolkey and Raye — despite their differing views of executive power — were both high-ranking aides to governors: Raye served Governor George Deukmejian as Deputy Legislative Secretary and later as his Legal Affairs Secretary, and Kolkey was Legal Affairs Secretary and counsel to Governor Pete Wilson.
The Supreme Court should rule on the petition for review in the case by the second week of September.
