Judge limits California governor’s powers during coronavirus pandemic

California Assemblymen Kevin Kiley and James Gallagher sued to stop California Governor Gavin Newsom’s “one man rule,” as California Globe has reported over several months. They were in Sutter County Superior Court October 21st, arguing that Gov. Gavin Newsom has exceeded his emergency powers in issuing Executive Orders having nothing to do with the coronavirus pandemic crisis.

Monday, State Superior Court Judge Sarah Heckman tentatively ruled in favor of Gallagher (R-Yuba City) and Kiley (R-Rocklin) in their abuse of power lawsuit against Governor Newsom.

In the tentative ruling, Judge Heckman declared the Governor’s recent Executive Order N-67-20 unconstitutional. More importantly, Judge Heckman’s tentative ruling places a permanent injunction against the Governor which prevents him from unilaterally making or changing state law moving forward.

Assemblyman Kiley wrote:

The Judge ruled Newsom violated the Constitution. She also issued an injunction restraining the Governor from issuing any more unconstitutional orders. You can read the ruling here.

This marks an end to Gavin Newsom’s one-man rule. It makes clear that the laws of the State of California do not countenance an autocracy under any circumstances – not for a single day, and certainly not for eight months with no end in sight.

The ruling is “tentative,” meaning Newsom has a few days to try to persuade the Judge to change her mind, but it’s rare for a tentative ruling to change. While Newsom can appeal, we are confident the decision is on solid legal ground and will stand.

Kiley and Gallagher argue that California’s Constitution has an explicit separation-of-powers provision, which Gov. Newsom has violated. “A California Governor is constitutionally forbidden from doing the very thing Gov. Newsom has done here: exercise legislative powers,” they said.

Gov. Newsom’s Executive Order to create an all-vote-by-mail-election suspends and substantively changes California’s Elections Code. Gov. Newsom contends that the order “fits comfortably within the Governor’s broad grant of authority under the Emergency Services Act.”

Gov. Newsom’s attorneys argued that the governor does have the “”plenary” authority, along with “broad police powers” during a declared State of Emergency, and under the California Emergency Services Act (CESA).

In her ruling, Judge Heckman explains:

The Governor takes the position the California Emergency Services Act’s grant of authority to exercise “all police power vested in the state,” allowing him to “promulgate, issue, and enforce such orders and regulations as he deems necessary” authorizes him to legislate by unilaterally amending existing statutory law. Not only is this an active and ongoing controversy between the parties, but it is a critically important one for the Judicial Branch to resolve.

The Governor has issued three executive orders during the current state of emergency specifically regarding the November 3,2020 general election (Def. Exs. 4 and 5; Pl. Ex. D) and has issued more than 50 different executive orders changing numerous Califomia statutes since the state of emergency was declared. (Pl. Ex. F) Further, despite representations by the Governor’s legal counsel that Executive Order N-67- 20 dated June 3,2020 is “withdrawn,” there is no evidence it has been formally rescinded, and the Executive Order includes provisions controlling the election process for the November 3, 2020 General Election which were not superseded by the subsequently enacted legislation.

Specifically, despite the subsequent legislation, the Executive Order remained in effect requiring all county election officials to use the Secretary of State’s barcode tracking system for all mail ballots and altered the statutorily required outreach in Voter’s Choice Act counties to provide noticed, public meetings allowing for public comment on voting access for California voters with disabilities or limited English proficiency.

Judge Heckman also found “The plain meaning of the CESA does not delegate to the Governor the power to legislate, and therefore does not violate the separation of powers under California Constitution.”

Importantly, Judge Heckman did rule “On the issue of whether Executive Order N.67-20 was authorized by the California Emergency Services Act, the court finds the executive order was NOT authorized by the CESA because it improperly amended existing statutory law, exceeding the governor’s authority and violating the separation of powers.”

The judge explains:

The CESA allows the Governor, during a state of emergency, to issue orders and regulations and to suspend certain statutes, but the plain and unambiguous language of CESA does not permit the Governor to amend statutes or make new statutes. The Governor does not have the power or authority to assume the Legislature’s role of creating legislative policy and enactments. Because Executive Order N-67-20 amended sections of the Elections Code it exceeds the Governor’s authority under CESA and renders Executive Order N-67-2O invalid.

Kiley and Gallagher argued the Governor may not exercise legislative powers unless permitted by the Constitution, while the governor’s attorneys argued, “Making orders’ is what it says,” and that the legislation took care of overriding the governor’s orders.

Gallagher and Kiley argued in court that there is a very clear distinction in the California Governor’s emergency powers as it pertains to legislation: he cannot create legislation or new laws, but the emergency powers allow the governor to remove legislation that is a roadblock to making decisions during the emergency. He can suspend any regulatory statute if it is getting in the way of facilitating emergency procedures.

It appears Judge Heckman agreed with them:

The Court finds good cause to issue a permanent injunction consistent with the request set forth in paragraph 2l of plaintiffs’ complaint (Def. Ex. l), as follows: 8 Gavin Newsom, in his official capacity as Governor of the State of California is enjoined and prohibited from exercising any power under the California Emergency Services Act (Government Code $ 8550 et seq.) which amends, alters, or changes existing statutory law or makes new statutory law or legislative policy.

“Nobody disputes that there are actions that should be taken to keep people safe during an emergency. But that doesn’t mean that we put our Constitution and free society on hold by centralizing all power in the hands of one man,” Gallagher and Kiley said in a press statement.

The Court’s decision does not impact any of the election protocols for the 2020 election.

California Globe was the only Capitol media present at the trial.

Canadian military wants to establish new organization to use propaganda, other techniques to influence Canadians

The Canadian Forces wants to establish a new organization that will use propaganda and other techniques to try to influence the attitudes, beliefs and behaviours of Canadians, according to documents obtained by this newspaper.

The plan comes on the heels of the Canadian Forces spending more than $1 million to train public affairs officers on behaviour modification techniques of the same sort used by the parent firm of Cambridge Analytica, as well as a controversial and bizarre propaganda training mission in which the military forged letters from the Nova Scotia government to warn the public that wolves were wandering in the province.

The new Defence Strategic Communication group will advance “national interests by using defence activities to influence the attitudes, beliefs and behaviours of audiences,” according to the document dated October 2020. Target audiences for such an initiative would be the Canadian public as well as foreign populations in countries where military forces are sent.

The document is the end result of what Chief of the Defence Staff Gen. Jon Vance has called the “weaponization” of the military’s public affairs branch. The document is in a draft form, but work is already underway on some aspects of the plan and some techniques have been already tested on the Canadian public.

But the office of Defence Minister Harjit Sajjan said Sunday that the plan, at least for now, is not authorized to proceed. Sajjan has raised concerns about some of the activities related to such influence and propaganda operations. “No such plan has been approved, nor will it be,” Floriane Bonneville, Sajjan’s press secretary, said after being asked by this newspaper about the initiative.

But a series of town halls were already conducted last week for a number of military personnel on the strategies contained in the draft plan.

The report quotes Brig.-Gen. Jay Janzen, director general military public affairs, who stated, “The motto ‘who dares, wins’ is as applicable to strategic communication as it is to warfare.”

The initiative also proposes the creation of a new research capability established to analyze and collect information from the social media accounts of Canadians, non-governmental organizations, industry and the news media, according to the report.

The Canadian Forces have already tested that capability earlier this year. This newspaper reported that a team assigned to a Canadian military intelligence unit monitored and collected information from people’s social media accounts in Ontario, claiming such data-mining was needed to help troops who were to work in long-term care homes during the coronavirus pandemic.

That initiative, aimed at people’s Facebook, Twitter and Instagram accounts, involved collecting comments made by the public about the provincial government’s failure to take care of the elderly. That data was then turned over to the Ontario government, with a warning from the team it represented a “negative” reaction from the public.

Military officers see nothing wrong with such collection of data as it is already in the public domain on social media accounts. They concede the team should not have been assigned to military intelligence, but under the new plan it will be controlled by the military’s public affairs branch.

But others have questioned how collecting information on the public’s views concerning Ontario Premier Doug Ford was even relevant to how the Canadian Forces were to care for elderly residents. In addition, concerns have also been raised on why the military turned over such data to Ford’s government and what became of it.

Sajjan requested an investigation be done into the data collection and has also limited at least temporarily some of what the military calls influence activities.

The military, however, noted in the plan that it will consult the federal privacy commissioner before it launches its collection of Canadians’ online information.

The public affairs enhancement plan reflects the military leadership’s view they can shape and direct the attitudes of Canadians if the right techniques are applied. “Defence StratCom will focus on effects and outcomes among key audiences and will provide clear direction on aligning actions, efforts and resources in pursuit of strategic objectives,” the plan added.

Some in the Canadian Forces already attempted to conduct a trial run of such techniques.

This newspaper reported in July the military had planned a propaganda campaign aimed at heading off civil disobedience by Canadians during the coronavirus pandemic. That campaign was to use similar propaganda tactics to those employed against the Afghan population during the war in Afghanistan, including loudspeaker trucks to transmit government messages. The propaganda operation was halted after concerns were raised about the ethics behind such techniques.

The public affairs enhancement plan also calls for harnessing the social media accounts of select Canadian Forces staff to push out pre-approved government and military messages to the public. Although the social media activity would be seen to be coming from the personal accounts of military personnel, it would actually be Canadian Forces public affairs officers behind the scenes crafting and coordinating the messages.

The enhancement plan also calls for improving links to military-friendly academics and retired senior military staff so they can be used to push out approved Canadian Forces messages either on social media or in their interactions with journalists.

Sajjan had originally approved the weaponization of public affairs initiative, started in 2015, along with a separate but significant expansion of military propaganda capabilities for various units. The Liberals outlined in their 2017 defence strategy policy the need for the Canadian military to become more involved in propaganda and information warfare.

But attempts to influence the public haven’t always worked out. Last year, the Department of National Defence and the Canadian Forces planned a public relations campaign to counter what bureaucrats and officers believed were false claims that the military had a problem with racists in the ranks. But that plan had to be scuttled after alleged racists and far-right sympathizers with links to military became involved in a series of high-profile incidents, undercutting the message of the PR scheme that the severity of the issue had been exaggerated.

As part of that PR effort, dossiers were created about journalists the military believed would cover the issue of racists in the ranks, including the CBC’s Murray Brewster. The dossier about Brewster, who has since broken a number of stories about the far-right in the Canadian Forces, contained transcripts of his interviews with senior military staff and the warning, “He’s familiar with the defence system, and his reporting, while factual, often emphasizes the mistakes and shortcoming of DND and the CAF.”

Bonneville said the minister did not and will not authorize the creation of the dossiers on journalists. She did not, however, provide an explanation on why the files were created by Canadian Forces staff.

In addition, under Sajjan’s watch, an invitation-only Facebook page has been created where serving and retired military and DND public affairs staff share information about journalists. There are more than 400 participants on the Facebook page, which is officially supported by the DND.

https://ottawacitizen.com/news/national/defence-watch/canadian-military-to-establish-new-organization-to-use-propaganda-other-techniques-to-influence-canadians