Newsom’s Puzzling Final Brief to the Court of Appeals
Gavin Newsom’s final brief to the Court of Appeals begins, “This case is not about a dictatorship in Ancient Rome.” It’s perhaps not a great sign when you have to clarify that upfront.
This isn’t the only gaffe. To try to explain how the Legislature works, the Governor cites not the Constitution but a recent tweet by a Democrat Assemblywoman. That tweet has now been deleted.
But yes, the Reply Brief is in. We’ll next hear from the Court when a date is set for oral argument. While the Third District Court of Appeals has 11 Justices, only three are selected (supposedly at random) to decide the case. So you need two votes to win.
I’ve posted all of the briefs here, including a few “Amicus” or “Friend of the Court” briefs:
- Placer County has filed an excellent brief for our side asking the Court simply to “require the Governor to follow the law as written.”
- Two Democrat Legislators filed a short brief, surely at Newsom’s behest, where they embrace the role of the Roman Senate after the Republic’s fall – one where our Legislature exists simply to serve the Governor. While both lawyers, they had the Legislative Counsel’s Office write the brief for them; James and I have written all briefs ourselves at no taxpayer cost.
- One of Newsom’s own appointees, a Berkeley Law professor, accuses Sutter County Superior Court Judge Sarah Heckman of herself “invading” the separation of powers by ruling against the Governor. Jarringly, the professor illustrates one of his points with a hypothetical scenario where a “wildfire burned the Sutter County Superior Court to the ground.”
For its part, Newsom’s brief takes a somewhat overcaffeinated tone in attempting to refute our Opposition. Beyond the dictatorship denialism in the first sentence, it addresses three ways the Court could decide the case:
- Dismiss the case on a “mootness” technicality (Newsom’s hope all along)
- Rule Newsom has exceeded his powers under the Emergency Services Act
- Strike down the Emergency Services Act as unconstitutional
Judge Heckman took Route 2 in our victory at trial, and Newsom agrees her ruling “calls into question vast swaths of the State’s emergency response” and threatens to invalidate “dozens of other executive actions.”
But Route 3 would be even more significant. And what’s strange about Newsom’s latest brief is it actually seems to nudge the Court in that direction. His defense of the Emergency Services Act’s constitutionality is laughably weak, almost like he’s throwing in the towel.
My guess is he’s trying to get the Court to dismiss the case on a technicality (Route 1) by presenting the starkest possible alternative: that if it doesn’t do so, it will have to make the most sweeping ruling a California Court has ever made – striking down the whole Act, declaring that the last 9 months were lived in an unconstitutional underworld, and terminating the State of Emergency along with all emergency orders.
Newsom’s gamble is the Court will latch onto Route 1 as a way to avoid this outcome. The problem is this requires the Court to basically find that the case isn’t very important. As absurd as that notion is, Newsom’s lawyers have twisted themselves into knots trying to advance it. But their own client, Governor Gavin Newsom, blew their strained arguments out of the water at a recent press conference, calling this case a “profoundly important decision.”
Everyone knows Newsom is spiraling. The Associated Press just ran a headline saying his star is “dimmed.” The recall against him gathers steam every day. The French Laundry has made him a national punchline. But with this latest brief, his desperation has sunk to new depths.
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