James and I have been working furiously the last few days to quickly turn back the Governor’s outrageous and dishonest gambit with the Court of Appeals.
Here’s the timeline of what has occurred: Last Friday around 5 PM, Judge Heckman issued her final ruling. On Monday, Newsom rushed to the Appeals Court to try to get released from the Permanent Injunction. That same day, he locked down the vast majority of California; yesterday, of course, he purported to impose a curfew.
Rather than go through the ordinary appeals process, the Governor is trying to jump the line with a 73-page “extraordinary writ” petition that includes a 4-volume, 900-page Appendix. He tells the Court the Permanent Injunction must be immediately put on hold because it “calls into question vast swaths of the State’s emergency response” and threatens to invalidate “dozens of other executive actions.”
The Appeals Court shortly thereafter stayed the Injunction, but only “pending the receipt of opposition.” So we put together a Preliminary Opposition as quickly as possible, which you can read here. It begins:
“The very business day after the trial court’s final Statement of Decision, Petitioner has sprung on Real Parties in Interest and Respondent Superior Court a battery of new evidence and legal arguments – replete with false statements and mischaracterizations – that were not introduced at the trial or in hundreds of pages of briefing. Such sandbagging should not be rewarded with the extraordinary remedy of writ relief, which Petitioner seeks to abuse as a vehicle to re-try the case.”
Newsom’s filing is breathtaking in its dishonesty, suggesting that Judge Heckman’s Injunction would “hamstring State action if a wildfire or earthquake were to strike tomorrow.” Other Governors have been responding to wildfires and earthquakes since California’s founding without upending the rule of law and turning the state into an autocracy as Newsom has.
I started counting the outright falsehoods in the Governor’s petition and got to 13 in just one section. His strategy seems to be stoking fear with apocalyptic claims while throwing so much paper in front of the court that there isn’t time to ferret out his false representations.
Let me give you one example. At trial, we produced an order from the Secretary of State that demolished the Governor long-pursued hopes of getting out of the case on a mootness technicality. So what did Newsom do? In a page out of Orwell’s 1984, he apparently ran to the Secretary of State and had him put out a new order “correcting” what he said before.
So now, in the Appeals Court, the Governor has produced this new order for the first time, telling the Court that the “correction” was issued “long before the election.” After managing to find Memorandum # 20232, buried in the Governor’s massive appendix, I discovered it is actually dated not “long before the election” but 2 days before ballots were mailed – a crucial difference for the point being argued.
Now that our Preliminary Opposition has been filed, we hope the Court will lift the stay on the Injunction as it suggested. Many people have asked how this might affect the curfew and new draconian lockdowns. Newsom states his own opinion on that in Footnote 11 of his filing:
“It is clear, however, that the trial court’s ruling would leave intact the most contentious aspects of the State’s public health response to COVID-19—for example, the requirements to engage in physical distancing, to shutter certain businesses, and to wear masks. Those public-health measures are independently supported by separate provisions of the Health and Safety Code; they do not depend on the Governor’s authority under the Emergency Services Act. (See, e.g., Health & Saf. Code, § 120140.)“
I will address Footnote 11 at greater length soon, and you can see the Pacific Legal Foundation’s explanation as to why the Health and Safety laws he refers to, dealing with quarantining, do not in fact support the lockdown. But for the moment, it’s worth noting that the Governor appears to have made a significant concession: that the Injunction does limit his authority as to these restrictions under the Emergency Services Act, which is his primary legal basis for imposing them.
We fully expect this case will ultimately be decided by the California Supreme Court, but we are urging the Appeals Court as strongly as possible not to suspend the Injunction in the meantime. That would give Newsom a green light to continue his attack on our Constitution and civic institutions.