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California's Emergency Services Act

"Forsan Et Haec Olim Meminisse Iuvabit"

A few months after being appointed Deputy Secretary and General Counsel to California's Business, Transportation & Housing Agency, Southern California suffered the Northridge Earthquake.  At the time, the transportation departments within the BT&H Agency included the Department of Transportation (Caltrans), the California Highway Patrol (CHP) and the Department of Motor Vehicles (DMV).  I soon received a call from the Governor's office directing me to prepare some orders for the Governor's consideration under California's Emergency Services Act ("ESA") 

The ESA can be found in the Government Code beginning at Section 8550.  It contains many detailed provisions that cannot be summarized in this space.  One significant power granted to the Governor is the power to suspend certain laws.  Section 8571 provides:

"During a state of war emergency or a state of emergency the Governor may suspend any regulatory statute, or statute prescribing the procedure for conduct of state business, or the orders, rules, or regulations of any state agency, including subdivision (d) of Section 1253 of the Unemployment Insurance Code, where the Governor determines and declares that strict compliance with any statute, order, rule, or regulation would in any way prevent, hinder, or delay the mitigation of the effects of the emergency."

While broad, this statute does not endow the Governor with the power to suspend all laws.  As an initial either a "state of war emergency" or "state of emergency" must exist.  These are terms defined in Government Code Sections 8555(a) & (b).  Further, he or she may only suspend a "regulatory statute" or a "statute prescribing the procedure for the conduct of state business".  One problem is that the statute does not define what is meant by a "regulatory statute".   The Governor's authority to suspend regulations of state agencies does not appear to be so limited.  Finally, Section 8571 requires that the Governor must determine and declare that strict compliance would "in any way prevent, hinder, or delay the mitigation of the effects of the emergency".   Any gubernatorial orders, amendments or rescissions thereof issued during a state of war emergency or state of emergency must be in writing and take effect immediately upon their issuance.  When the state of war emergency or state of emergency terminates, the orders are of no further force or effect.  Cal. Gov't Code § 8567(b).

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