Amicus Briefs
Ghost Golf, Inc. v. Gavin Newsom
CASE SUMMARY
NCLA asks the Supreme Court of California restore clear standards for applying the California Constitution’s nondelegation doctrine. The Emergency Services Act (ESA) allows the Governor to unilaterally declare a state of emergency and “amend or make new law” that would apply to residents. California’s Fifth Appellate Court upheld the Governor’s exercise of pure legislative power because it concluded the state Legislature’s ability to end the emergency declaration “adequately” guards against ESA’s standardless delegation. NCLA urges the California Supreme Court to review that flawed ruling and restore the requirement that statutes contain “sufficiently clear standards” when delegating legislative power to executive officials.
The California Supreme Court’s 2017 Gerawan Farming, Inc. v. Agricultural Labor Relations Board ruling correctly decided that statutes delegating legislative power cannot leave “fundamental policy issues” for anyone but the Legislature to resolve. It further held rightly that laws must “provide adequate direction” to the Governor and agencies, so courts can tell if agencies have followed the Legislature’s directions. The Court also mandated that these statutes be joined by safeguards adequate to prevent their abuse. The Fifth Appellate Court abandoned that standard in Ghost Golf’s case against Gov. Newsom’s statewide business shutdown orders during the Covid-19 pandemic. It held that safeguards, by themselves, suffice to make a delegation constitutional. That reasoning would foolishly unwind the kind of clear delegation standards that Gerawan Farming required.
The ESA gives the Governor the authority to exercise “all police power vested in the state,” which is “generally the power to legislate.” The Fifth Appellate Court bluntly recognized that the “ESA permitted the Governor to amend or make new laws,” a step that cannot be reconciled with the California Constitution’s plain text forbidding executive officials from exercising legislative power.