Update: Newsom lawsuit on illegally canceling death penalty to be heard in court August 31.

A civil lawsuit I have filed against Gov. Gavin Newsom for overstepping his authority with a 2019 executive order that created a moratorium on the state’s death penalty, will now be heard by the Superior Court in Sacramento on August 31. The Judge will rule on mutual motions for summary adjudication filed by both myself and Newsom. I am represented in the case by litigator Chad Morgan. Newsom passed on being represented by the state Attorney General’s office and instead has hired the San Francisco-based national law firm of O’Melveny and Myers to represent him. The case has been ignored by almost all of the main-stream news media, including the Los Angeles Times which has written reports about the status of California’s death penalty law without mentioning the case, but the Orange County Register published a fair assessment of the lawsuit here: https://www.ocregister.com/2021/02/03/oc-man-files-lawsuit-against-gov-newsom-over-death-penalty-moratorium/https://www.ocregister.com/2021/02/03/oc-man-files-lawsuit-against-gov-newsom-over-death-penalty-moratorium/. After I filed the case, a retired former member of Ronald Reagan’s White House Counsel’s office sent me an email stating simply “Bravo – You are absolutely correct on the law.”

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While the case is still pending, public disclosures and a news report now reveal that the Governor has accepted more than $700,000 from two major law firms to both create and defend his Executive Order.

Rather than relying on the Attorney General’s office, Newsom has received extensive free “behested” legal services, including $405,000 in legal services from the private law firm of Boies Schiller Flexner, to help him craft his “moratorium”, as well as an additional $305,385 from the law firm of O’Melveny and Myers to defend the alleged faulty Order in court, according to public disclosures.  While the Los Angeles-based O’Melveny and Myers has represented Newsom pro bono in the legal challenge to the Executive Order, it has also received at least $600,000 in state funds representing the Newsom Administration in other cases.

My lawsuit argues that Newsom did not have the power in 2019 to issue an Order to “across the board” halt the executions of the 700-plus inmates on California’s death row, or to withdraw the state’s lethal-injection protocol and dismantle the execution chamber at San Quentin State Prison. It requests a Declaratory Judgment that Newsom violated the law by exceeding his authority, that the lethal injection protocols be placed back in the Code of Regulations, and that the death chamber at San Quentin be restored to working condition.

As I told the Register, “The case is largely about violation of process, about violation of the constitutional separation of powers. (The governor) does not have the power to erase the death penalty, he does not have the power to dismantle the death chamber. He does have the power to grant reprieves, pardons or commutations,” Lacy said, “but he does not have the power to do that across the board.”

Instead, what he must do is examine each and every case he issuing a reprieve under, and take into consideration what happened to the victims, and the victims’ families, and be able to look at the survivors in the eye and justify in writing why their loved one’s murderer should be granted a reprieve from an impartial jury’s decision to sentence death.

When I think of the applicability of the death penalty in California, I think of 14 workers at the Department of Public Health in San Bernardino County who were murdered at a Christmas party in cold-blood by Farook and Malik, the terrorists. I also think of that little boy, Anthony Avalos, who was abused for years, tortured, and killed by his mother and her boyfriend. If Newsom is to have his way, the perpetrators of these crimes would never be sentenced to death, even after a fair trial and unanimous determination by an impartial jury that the death sentence under California law should be imposed. These sadnesses keep me focused on the real problem – Newsom imposing his own flawed value system to undermine and try to erase California’s long-standing and legal death penalty law. I am looking forward to a judicial resolution of my case late this summer.

Californian’s remain generally supportive of the death penalty law according to the most probative recent polling of the issue.  Early in June, the national polling firm of McLaughlin and Associates found 49% of Californians would vote No if a constitutional amendment to abolish the death penalty is placed on the ballot in 2022 by the Legislature, while 43.8% would vote Yes.  When voters are informed of issues that would be raised during a campaign to repeal the death penalty, opposition to repeal increases to a majority of 53.3% of voters saying No to abolishing California’s death penalty law, and support drops to just 40.5%.  See poll results: https://usjf.net/wp-content/uploads/2021/06/CA-Statewide-Executive-Summary-6-8-21-1.pdf.

Farook and Malik, who killed 14 San Bernardino County workers. Would Gavin Newsom pardon them too?


  1. I want to thank Mr. Lacy for filing this lawsuit, and holding this reckless governor accountable. The citizens have shown support for the death penalty repeatedly, and a rogue governor does not have a right to overrule the citizens.

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