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The Third District Court of Appeal decided Thursday that courts have the right to intervene when the governor is accused of overstepping emergency powers. The case, National Tax-Limitation Committee v. Schwarzenegger, C043583, is a holdover from before the Oct. 7 recall election and concerns the utilities crisis that plagued California while Gray Davis was governor. Davis called a state of emergency Jan. 17, 2001, because troubles in the power market were causing blackouts and other problems. Declaring the emergency gave Davis the ability to quickly renegotiate long-term contracts with energy companies and take other steps to try to end the crisis without legislators’ approval. But Assemblyman Ray Haynes, R-Murrieta, who was then a senator, and the tax committee believe Davis kept the emergency in effect for too long. They sued to force Davis to declare an end to the crisis, but Sacramento County Superior Court Judge Gail Ohanesian tossed the case. “It’s appropriate during the heat of battle but that is precisely why the governor must stop � because he is possessed with dictatorial powers,” said Lewis Uhler, president of the nonprofit tax committee. Davis declared an end to the emergency days before leaving office. Even though that made the appeal moot, the Third District decided to take up the issue anyway. In the appeal court’s unanimous, 33-page opinion, justices say Ohanesian erred. They rejected arguments presented by the attorney general’s office, which defended Davis. The court said neither separation of powers nor the “political question” doctrine protected the governor from a writ of mandate commanding him to end a state of emergency. “Political question” refers to the prohibition against courts making policy that is normally created by the executive and legislative branches. Justices also rejected AG claims that Davis was shielded from court interference. “While the governor could not be sued for damages alleged to have resulted from his discretionary decision not to terminate the state of emergency, it does not follow that his decision cannot be reviewed for abuse of discretion under the court’s traditional power to issue writs of mandate. Accordingly, the governor’s immunity argument fails,” wrote Justice Ronald Robie in an opinion that was also signed by George Nicholson and Vance Raye. Uhler and Haynes are represented by a conservative public interest law group called the United States Justice Foundation. An attorney with that group, Gary Kreep, said the ruling was a “warning shot” to newly elected Gov. Arnold Schwarzenegger in case he does something similar. Several Republicans, including gubernatorial candidate Sen. Tom McClintock, were critical of the way Davis handled the utilities crisis, especially the new contracts negotiated by his administration under the emergency order. Even though Republican legislators consider Thursday’s ruling a victory, a spokesman for Schwarzenegger found something positive in the opinion, too. “We are pleased the court recognized that the California Emergency Services Act confers broad powers on the governor to deal with emergencies and left untouched the authority of the governor to declare a state of emergency,” said spokesman Vince Sollitto. Assemblyman Haynes said the decision will force governors to be more articulate about why they declare emergencies in the first place. “They’re going to have to involve the Legislature in the process,” Haynes said. “Legislators are there for a reason � to provide a counterbalance to the governor.”

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