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By KEVIN KILEY

After we obtained a Restraining Order against Gavin Newsom, his lawyers at the Attorney General’s Office spent the weekend furiously churning out papers to file with the Court of Appeals.

The Governor hopes to get out of the Restraining Order on a procedural technicality, so he can avoid defending himself on the merits. His argument, discussed below, defies belief.

Yesterday, James Gallagher and I filed our Opposition. We begin the brief by describing what’s at stake in our case against the Governor:

“The existence of a pandemic does not give the Governor of the State of California the power to upend the Constitution. Nor is the public interest in the immediacy of executive action paramount to the greater public interest in the California Constitution, the separation of powers, and the rule of law – all of which go to the heart of our representative democracy.”

Gov. Newsom’s appeal does not engage with this core Separation of Powers issue. Instead, he hangs his hat on the issue of “notice,” complaining he didn’t know about the Restraining Order hearing.

But he did know. He just chose not to show up. We delivered a notice directly to the Governor’s Office, and we personally corresponded with his lawyers at the Attorney General’s Office. Amazingly, these very same lawyers are now arguing, on behalf of the Governor, that this doesn’t count because…they don’t represent the Governor. As we say in our Opposition:

“Apparently the same Attorney General who was not the Governor’s attorney on Thursday, suddenly became his attorney and spent a significant amount of time over the weekend preparing a 34 page brief and 122 page Appendix to make the Governor’s case before this court.” 

This argument would be laughable, if it weren’t being used to enable the most serious threat to checks and balances in California in our lifetimes. The Governor’s ultimate goal, of course, is delay. As we tell the Court, he wants to avoid an unfavorable precedent so he can keep ruling the state by decree:

“Delay would permit the Governor to wait this out and escape being checked for his violation. Unless he is enjoined, he is only going to continue to issue orders beyond the scope of the emergency.”

“Only the judicial branch,” our brief concludes, “can restore the appropriate constitutional balance.”

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