Soon after entering government service, California was hit by the Northridge Earthquake. As General Counsel to the Business, Transportation & Housing Agency, I received a call directing that I prepare draft executive orders for the Governor under the Emergency Services Act, Cal. Gov’t Code § 8550-8668. Thus, I’ve been interested in the current Governor’s declaration of a state of emergency in January as a result of California’s continuing drought. Last Friday, Governor Jerry Brown issued a Proclamation of Continued State of Emergency.
These proclamations trigger broad and seemingly extra-constitutional powers. During a state of emergency, for example, the Governor has the authority to “suspend any regulatory statute, or statute prescribing the procedure for conduct of state business, or the orders, rules, or regulations of any state agency” when “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”. Cal. Gov’t Code § 8571. The Governor is also authorized to “commandeer or utilize any private property or personnel deemed by him necessary in carrying out the responsibilities hereby vested in him as Chief Executive of the state and the state shall pay the reasonable value thereof”. Cal. Gov’t Code § 8572. The orders and regulations under the Emergency Services Act have the force and effect of law. Cal. Gov’t Code § 8567.
The Governor’s most recent proclamation took advantage of this authority by ordering the suspension of the provisions of the Government Code and the Public Contract Code applicable to state contracts, including, but not limited to, advertising and competitive bidding requirements for specified drought mitigation responses. The Governor also ordered that “that any provision of the governing document, architectural or landscaping guidelines, or policies of a common interest development will be void and unenforceable to the extent it has the effect of prohibiting compliance with the water-saving measures contained in this directive, or any conservation measure adopted by a public agency or private water company”.
Thus, the Emergency Services Act concentrates both legislative and executive powers in the Governor. The idea that the executive should be invested with such authority can be traced back to the Roman Republic. This innovations placed the supreme power in the hands of one man who could rule by decree for a period of up to six months. Gaius Julius Caesar was Rome’s last dictator. After his assassination in 44 B.C.E., the Lex Antonia abolished the dictatorship. Subsequent Roman emperors avoided the title.