Since Governor Gavin Newsom declared a state of emergency in response to the COVID-19 pandemic on March 4, 2020, he has issued more than 50 executive orders. Some of those orders directly impact existing statutory law.
In a recent challenge to Governor Newsom’s Executive Order N-67-20 on elections, Sutter County Superior Court Judge Sarah H. Heckman issued a tentative decision on November 2, 2020 following a court trial in Gallagher et al. v. Gavin Newsom, Case No. CVCS20-0912. The court’s tentative decision becomes final after 10 days unless the parties request a statement of decision or make new proposals to the judge. The plaintiffs brought the action against Governor Newsom, alleging he exceeded his constitutional authority by “unilaterally amending, altering, or changing existing statutory law or making new statutory law” through emergency executive orders. The court’s decision, however, was not limited to a particular order but considered generally the governor’s ability to alter statutory law with executive orders.
Judge Heckman acknowledged the governor has limited powers to suspend regulations and statutes during a declared emergency in accordance with the California Emergency Services Act (CESA) [Gov. Code §§ 8565-8574], but also concluded the CESA does not confer authority or power upon the governor to assume the Legislature’s role in making or amending statutes. The court declared Executive Order N-67-20 void as “an unconstitutional exercise of legislative power” and that it has no further force or effect.
In addition to declaring the order unconstitutional, the court issued a broad permanent injunction prohibiting the governor from “exercising any power under the [CESA] which amends, alters, or changes existing statutory law or makes new statutory law or legislative policy.” The court’s decision likely invalidates all statutory changes the governor has implemented by executive order.
In his March 30, 2020 Executive Order N-40-20, Governor Newsom extended the statute of limitations in Government Code section 3304, subdivision (d) of the Public Safety Officers Procedural Bill of Rights Act. Existing statutory law provides that a public agency cannot take punitive action against a public safety officer unless the investigation is concluded within one year of the agency’s discovery of potential misconduct by a person authorized to initiate an investigation of the allegation. The agency is also required to notify the public safety officer of its intent to discipline within that same year, subject to certain exceptions. Paragraph 15 of Executive Order N-40-20 extended the 3304, subdivision (d) one year statute of limitations by 60 days.
The governor’s extension of the one year statute of limitations effectively amends or alters existing statutory law. As a result of Judge Heckman’s decision and permanent injunction, the 60 day extension for concluding investigations of public safety officers likely is invalid. Given the Gallagher et al. v. Gavin Newsom decision, agencies should not rely on the 60 day extension, particularly if such reliance would take the investigation and discipline outside of the one year statute of limitations set forth in Government Code section 3304, subdivision (d).