California Appellate Court upholds the validity of Governor’s executive orders issued during the pandemic

May 5, 2021

This morning, the Third District Court of Appeal ruled in Gavin Newsom v. Sutter County Superior Court that the Governor’s issuance of executive orders during the COVID-19 pandemic did not constitute an unconstitutional delegation of legislative power.


The court’s decision validates actions taken by cities during the pandemic in accordance with the executive orders.

Previously, the Sutter County Superior Court issued an injunction against Gov. Gavin Newsom’s use of the California Emergency Services Act (CESA) in an executive order related to the November election. The underlying lawsuit challenged only that single executive order, however, the trial court ruling held that the Governor was not permitted to issue executive orders under CESA that amended or made statutory law. The order went on to reference more than 50 other executive orders issued by the Governor during the pandemic. The breadth of the court’s ruling raised concerns because it was unclear what effect it might have on other existing executive orders, several of which cities currently rely on to conduct business amidst the pandemic, for example, the order modifying the Brown Act.

The Governor’s Office appealed the trial court’s ruling, and Cal Cities, along with the California State Counties Association, filed an amicus brief with the Court of Appeal that highlighted the lack of clarity in the trial court order regarding the validity of executive orders. The brief articulated that local government had relied on a number of executive orders to continue operations during the pandemic and that a contrary ruling would call into question the validity of the actions local governments had taken in good faith based on the executive orders. Additionally, the brief highlighted that local government also relied on executive orders related to the extreme heat and wildfire emergencies experienced by many cities in the past year. 

Today’s ruling by the Third District Court of Appeal reverses the lower court decision and upholds the Governor’s ability to issue executive orders under CESA. First, the court held that the claim related to the November 2020 election executive order, at issue in the trial court order, was moot because the election already took place and the order was superseded by legislation. Second, the court held that the Governor is statutorily empowered to issue executive orders under CESA, including quasi-legislative orders. In coming to this conclusion, the court noted that the plain language of CESA gives the Governor police powers in emergencies and such powers include quasi-legislative power. The court noted that this was not an unconstitutional delegation of power because while the Governor is obligated to terminate the emergency at the earliest possible date conditions warrant, the Legislature is also empowered to terminate the emergency at any time.

If the ruling is appealed, the case may go before the California Supreme Court. However, in the meantime, California cities may continue relying on executive orders to conduct government business in the face of the pandemic.