At 7:30 a.m. on Saturday January 9, the weather app on my phone registered 35 degrees in the Rancho Murieta Equestrian Center. I could see my breath, which is a rarity for this Southern California denizen. But despite the early hour and the frosty temperatures, local officials, concerned citizens, and state policy makers gathered for the first of the Day 2 panel discussions: By What Authority? State of Emergency and Your Constitutional Rights.
Despite the illusion of full authority that Governor Gavin Newsom has attempted to weave, the temperature in the State reflects the opposite, and it is that heat, driven with purpose, that kept everyone warm.
POLITICO did a “pity poor me” piece on His Hairfulness, that was written as though they were grieving with him that his dictatorship could be coming to an end:
“Californians are frustrated, tired and sick. And in the midst of the unfolding catastrophe, Gov. Gavin Newsom — confronting a burgeoning recall effort, on top of a year of wildfires and civil unrest — is under siege.”
Ya think, POLITICO? The words “under siege” are an interesting choice, as if Newsom is a general at war, rather than a power-hungry politician who brought all this on himself through his own incompetence and overreach.
It is not just the Recall that is indicative of this. California Assemblymen James Gallagher and Kevin Kiley were part of the Day 2 panel discussion on Constitutional Rights, along with Brad Dacus, Founder/Director of Pacific Justice Institute (PJI). Gallagher and Kiley talked at length about why they chose to sue Gavin Newsom over his Executive Order changing Election codes, and their successive victory in having it deemed unconstitutional,
Dacus brought great insight into the legal battles that concern the State that PJI is spearheading, and gave hope that the Constitution cannot be put on the shelf, even in a state of emergency.
As RedState reported, Kiley and Gallagher sued, and successfully won the suit against Newsom:
“In early November, Sutter County Superior Court Judge Sarah Heckman ruled that Newsom’s Executive Order which amended sections of the state’s Elections Code was unconstitutional. Judge Heckman issued a permanent injunction barring Newsom from issuing additional Executive Orders that amended, changed, altered, or created new statutory law or legislative policy.
Newsom has appealed the decision, and the arguments are wending through the 3rd District Court of Appeals. Gallagher and Kiley presented the scary details on the counter arguments of Newsom’s legal team.
“The arguments that he’s making, especially for you local government members, the arguments he is making in court is that he alone has the police power of the entire State, that all power of the State is vested in him alone. Not only that, but he gets to make the decisions on how procedures change. And they actually even argue in one of their briefs that local governments really are not capable of governing themselves and coming up with procedures themselves.”
An essential part of California’s deliberative process is the Brown Act. Enacted in 1953, it guarantees the public can attend meetings of local legislative bodies to have their voice heard regarding new bills, measures, and changes to legislation.
“The Brown Act was suspended, and he [Newsom] does have the power to suspend statute in an emergency, but he does not have the power to just change the procedures of the Brown Act. We argued that hey, if he suspends the Brown Act, you all as local governments can figure out how to operate and have transparent meetings in conjunction with what works for your local areas and your constituents. The Governor said, no, that wouldn’t work out too well, he is the one that can do that, you guys really aren’t capable of doing that.”
Kiley reflected on how Californians found themselves in this place where we are scrambling for our Constitutional rights.
“Honestly, when you look at what’s happened this last year, one of the things that strikes me is just how easily our state just slid into this autocratic model of government. Because, you know that we’ve been moving in this direction in a long time in California. We’ve consolidated more and more power in Sacramento. Our bureaucracies have taken more and more power away from local communities. We are the least representative state in the country as it is to start with. Was it is even that big of a difference to place it all in one person’s hand?”
Sadly, The California State Association of Counties (CSAC) and the League of Cities is aligned with the Governor, as opposed to a return to the democratic process.
#California, this is really just *simple* math and science…
— California State Association of Counties® (@CSAC_Counties) January 1, 2021
“You know who agreed with him on that point? Your County Association, CSAC, and the League of Cities actually argued, Yeah, you know, the governor’s right, it really wouldn’t be good. He needs to rewrite the law for us and give us all the clear guidelines to follow,” Gallagher said.
“You get real clear guidelines with a dictatorship. It actually works out real well. There’s only one problem: it’s not consistent with democracy or representative government.”
With the return of the Legislature to Sacramento, both Assemblymen are committed to winning the appeal to further neuter the Governor’s overreach, and to help return the powers of the Brown Act and representative government back to the people.
“So, that’s how I’ve looked at the challenges we’re facing right now,” Kiley said. “It puts the problems that we have as a state that existed long before 2020 and it’s put them on steroids. And actually has given a lot of people in Californian some real insight into the way things actually work in our state.”
Both men are confident that they can win the appeal, as any loss would be a sobering result:
“I think if the courts buy the governor’s argument, that any emergency gives him the power to do anything that is at all related to it, or any secondary or tertiary consequence of it. Then that is, we use the analogy of a dictatorship in ancient Rome,” Kiley concluded. “Which is exactly the way it worked, when there is a state of emergency, you literally forfeited all powers and put it in the hands of one person. We believe that that is ultimately at stake in this case.”
Brad Dacus has taken on several cases in California surrounding religious freedom, public interest law, and First Amendment related-issues. Two, in Calavares and Alameda County, surround the freedom of churches to assemble, whether outdoor or indoor.
Dacus encouraged that the confirmation of Justice Amy Coney Barrett was a gamechanger for our Constitutional rights.
“This has been a decisive change, I believe, by God’s providence,” Dacus said.
“But for that replacement, we would not be where we are here today. We’d be having a totally different talk. We would have no light at the end of the tunnel. The arbitrary, capricious acts of government officials would still be allowed under the Jacobson rule.”
The Jacobson rule is what the pre-Coney Barrett Supreme Court used to justify dictatorial rule by elected officials. With the addition of Coney Barrett, she aligned with Justices Alito, Gorsuch, Thomas, and Kavanaugh in ruling that “The Constitution is Never on the Shelf.” The renewed court has put the onus on the government to meet burdens of proof “in order to warrant and justify its actions,” Dacus interjected.
Dacus’s most recent lawsuit is against Santa Clara County and Governor Newsom. Santa Clara County has imposed “Draconian restrictions” on houses of worship. Dacus is using the unequal treatment argument to counter the restrictions. He pointed out that the County’s airport (transportation) has not been restricted to any capacity. People are packed into airport facilities (and planes) for hours, and not just the 1-2 hours that most worship services employ.
Dacus also discussed the direct impact of a Biden administration on freedoms, and the concerns moving forward of a national mask mandate, national shutdowns, and mandatory vaccinations, to which Biden has alluded.
“This is very, very concerning economically, but also psychologically,” Dacus said. “This is usurpation of control that is unconstitutional.”
Dacus invited all concerned citizens to join PJI on a Zoom call on Thursday, January 14 at 2:00 p.m. Pacifc Time, where he will discuss more of the impact of a Biden administration, PPE loans to churches and synagogues, and give updates on re-openings. Visit pji.org for further details.
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