Sutter County Superior Court Judge Sarah Heckman Monday preliminarily ordered California Governor Gavin Newsom to stop issuing directives related to the coronavirus that might interfere with state law. She tentatively ruled that Governor Newsom overstepped his powers granted by the California Emergency Services Act (CESA) when he issued Executive Order N-67-2, which dealt with the general election.

Since the COVID-19 pandemic began in March, Governor Newsom has had authority to act under CESA. He issued over 50 different executive orders changing California laws since, and he has issued three executive orders specifically pertaining the November 3 general election. The governor contended that CESA granted him authority to exercise “all police power vested in the state,” allowing him to “promulgate, issue, and enforce such orders and regulations as he deems necessary” and authorizing him to legislate by unilaterally amending existing statutory law.

Judge Heckman found that Executive Order N-67-2, which required all county elections officials to use the Secretary of State’s vote-by-mail ballot tracking system, was not authorized by CESA and exceeded Governor Newsom’s powers. The judge wrote that “the CESA does not give the Governor the power or authority to amend statutory law or create new statutory law even during a state of emergency.”

Heckman found that the plain meaning of CESA did not allow the governor to legislate, so the act itself did not violate separation of powers. CESA only allows the governor to “make, amend, and rescind orders and regulations.” The governor was not empowered to “exercise legislative powers by unilaterally amending, altering, or changing existing statutory law or making new statutory law.” That would violate separation of powers principles.

Because of this, Heckman preliminarily ruled that the executive order was void and enjoined Newsom from amending, altering, changing, or making statutory law. This tentative decision will become the statement of decision unless a party specifies, within 10 days after service, “principal controverted issues” it is requesting that are not included in the decision.