June 13, 2021

Volume XI, Number 164

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Court Of Appeal Holds Governor Can Make Laws In An Emergency

The passage of the Lex Titia in 43 B.C.E. effectively legalized the end of the Roman Republic.  The law was passed in the crisis arising from the assassination the year before of Gaius Julius Caesar.  The Lex Titia bestowed on three men (the triumviri) to make and annul laws for the purpose rei publicae constituendae (restoring the republic).  The problem, of course, is that when executive and legislative powers are combined, the result is rule by decree and despotism.   Our founding fathers knew the dangers of concentrating power and they designed a form of government with three co-equal branches: legislative, executive and judicial.  This separation of powers was replicated in California's Constitution which unambiguously provides:

"The powers of state government are legislative, executive, and judicial.  Persons charged with the exercise of one power may not exercise either of the others except as permitted by this Constitution."

Art. III, Section 3.  

Last November, a Superior Court judge ruled that California's Emergency Services Act, Cal. Gov. Code § 8550 et seq., does not authorize the Governor to issue an executive order that amends or makes statutory law.  Yesterday, the Third District Court of Appeal reversed finding that the Governor may issue quasi-legislative orders in an emergency pursuant to Section 8627 which provides:

"During a state of emergency the Governor shall, to the extent he deems necessary, have complete authority over all agencies of the state government and the right to exercise within the area designated all police power vested in the state by the Constitution and laws of the State of California in order to effectuate the purposes of this chapter. In exercise thereof, he shall promulgate, issue, and enforce such orders and regulations as he deems necessary, in accordance with the provisions of Section 8567."

The statute, of course, cannot override the Constitution.  The Court of Appeal, however, found that the legislature could delegate its authority because the statute provides standards for implementation.  The problem, however, is that Section 8627 includes no such standards.  Nonetheless, the Court of Appeal found that the Emergency Services Act provides a standard in vesting the Governor with the responsibility of effecting a coordinated response to emergencies.  

The Court of Appeal also noted an important "safeguard" in the Emergency Services Act - the requirement that the Governor proclaim the termination of a state of emergency at the earliest possible date.  Cal. Gov. Code §  8629.   However, as explained in this post, the ability to obtain judicial review of a Governor's failure or refusal to end a state of emergency is unclear.   Further, there is no clear and definitive end to the current emergency.  The Lex Titia was itself intended to be a temporary measure lasting five years, but it was renewed and the Roman Republic was replaced by several centuries of dictatorship.

© 2010-2021 Allen Matkins Leck Gamble Mallory & Natsis LLP National Law Review, Volume XI, Number 126
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Keith Paul Bishop, Corporate Transactions Lawyer, finance securities attorney, Allen Matkins Law Firm
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Keith Bishop works with privately held and publicly traded companies on federal and state corporate and securities transactions, compliance, and governance matters. He is highly-regarded for his in-depth knowledge of the distinctive corporate and regulatory requirements faced by corporations in the state of California.

While many law firms have a great deal of expertise in federal or Delaware corporate law, Keith’s specific focus on California corporate and securities law is uncommon. A former California state regulator of securities and financial institutions, Keith has decades of...

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