Governor Gavin Newsom this afternoon issued an executive order intended to maximize Chief Justice Tani Cantil-Sakauye’s emergency authority, as Judicial Council chair, over California’s courts.  The order comes the day before an emergency meeting at which the Judicial Council itself is expected to bestow broad powers on the Chief Justice and to exercise those powers.  The Chief Justice, in turn, issued a statement in appreciation of the Governor’s action.

The executive order “suspend[s]” any limitation imposed by “Government Code section 68115 or any other provision of law” on the Chief Justice to address matters “via emergency order or statewide rule issued pursuant to section 68115.” (Link added; see here.)  It also suspends any limitation imposed by section 68115 or section 68072 on the Judicial Council or the Chief Justice to provide “for an emergency statewide or local rule or order amending the California Rules of Court or any other applicable court rule, or for any other expedited procedure for amending the California Rules of Court or any other applicable court rule.”

The rulemaking authority the Governor gives the Judicial Council and the Chief Justice is exceptionally broad — authority that is extended “to its constitutional maximum,” the executive order says.  Actually, it’s even beyond that maximum.  The state constitution’s article VI, section 6(d), says Judicial Council rules “shall not be inconsistent with statute,” but the Governor’s order turns that on its head.  The order says that if the Council or the Chief Justice “wishes to consider a rule that would otherwise be inconsistent with any statute concerning civil or criminal practice or procedure, the relevant statute is suspended . . . to the extent it is inconsistent with the proposed rule.”

The Governor cites the California constitution and state statutes generally, and Government Code sections 8567, 8571, and 8627 in particular, as his authority to grant broad authority to the Judicial Council and the Chief Justice.  Section 8571 allows the Governor, during a state of emergency, to “suspend any regulatory statute, or statute prescribing the procedure for conduct of state business, . . . where the Governor determines and declares that strict compliance with any statute . . . would in any way prevent, hinder, or delay the mitigation of the effects of the emergency.”

The Chief Justice’s statement says in part:

Just as this Governor has been a remarkable national leader during this pandemic — taking action to protect lives and livelihoods — this unprecedented order reflects a very deep concern to not only protect the myriad health and safety needs of California but also to ensure that justice still be available to those most in need.

We are in unprecedented times and I assured the Governor that we will assume this responsibility with utmost care and judiciousness.

[March 30 update:  regarding the constitutionality of the Governor’s emergency powers, see this March 19 post on SCOCAblogThe Governor’s Powers Under the Emergency Services Act.]