In re the Petition of the COMMISSION ON THE GOVERNORSHIP OF CALIFORNIA; EDMUND G. BROWN, JR., as Governor, etc., et al., Petitioners, v. MIKE CURB, as Lieutenant Governor, etc., et al., Respondents, 26 Cal. 3d 110

Opinion MANUEL, J. In these consolidated cases we examine the gubernatorial powers of the Lieutenant Governor during the Governor’s absence from the state and the powers of the Governor to rescind or revoke pri- or acts of the Lieutenant Governor.

The dispute involves the Lieutenant Governor’s appointment of a presiding justice of the Court of Appeal while the Governor was out of the state and the Governor’s withdrawal of that appointment and substitution of his own appointee after his return to the state, As hereafter developed, we conclude that the Lieutenant Governor has authority to exercise all gubernatorial powers of appointment while the Governor is physically absent from the state and that the Governor has authority to withdraw the appointment until the confirmation of appointment becomes effective.

Article V,

section 10 of the Constitution provides in pertinent part: “... The Lieutenant Governor shall act as Governor during the impeachment, absence from the State, or other temporary disability of the Governor or of a Governor-elect who fails to take office.” The

section also declares that this court shall have “exclusive jurisdiction to determine all questions arising under this section,” and confers exclusive standing to raise questions of temporary disability on “a body provided by statute.” Legislation creating the Commission on the Governorship (Commission) as the body having such standing (Gov. Code, §§ 12070-12076) took effect concurrently with adoption of

article V,

section 10 on November 8, 1966. The salient facts are undisputed: Governor Edmund G. Brown, Jr., left California for Washington, D.C., at 10 a.m. on March 26, 1979, and returned on March 28, 1979, at 2:11 a.m., 40 hours later. On March 27, the executive assistant to Lieutenant Governor Mike Curb informed the Governor’s secretary of the Lieutenant Governor’s intention to appoint Judge Armand Arabian to the vacant presiding justiceship on the Court of Appeal. The executive assistant was advised that the Governor intended to appoint Justice Bernard S.

Jefferson to .the vacancy and that Justice Jefferson’s name had already been submitted to the State Bar for evaluation. On the same date, the Lieutenant Governor appointed Judge Arabian as Presiding Justice for the Court of Appeal, Second Appellate District, Division One. On March 28, the Governor withdrew the appointment of Judge Arabian previously submitted by the Lieutenant Governor and appointed Justice Jefferson to the vacancy and at the same time appointed Judge Arleigh M. Woods as Associate Justice to fill the vacancy created by appointment of Justice Jefferson as Presiding Justice.

On May 7, 1979, Governor Brown and Justice Jefferson filed with this court a petition for writs of mandate and prohibition and for declaratory relief. Named respondents were Lieutenant Governor Curb, Judge Arabian, and the Commission on Judicial Appointments (the body with responsibility for confirming gubernatorial appointments of Court of Appeal justices).

The Governor’s petition prays that we direct the Commission on Judicial Appointments to act on the Jefferson appointment and that we declare that (1) no gubernatorial powers devolve on the Lieutenant Governor unless this court, on petition of the Commission, has first determined the existence of a temporary disability of the Governor, (2) the Arabian appointment is invalid because on March 27, the Governor “was not effectively ‘absent from the state’ within the meaning of

article V,

section 10, of the California Constitution,” and (3) the Governor’s withdrawal of the Arabian appointment prior to its confirmation was effective, leaving the Jefferson appointment the only one properly before the Commission on Judicial Appointments. On May 21, 1979, the Commission filed a “Petition for Determination of Questions under

section 10 of

Article V of the California Constitution.” The Commission states the constitutional (art. V, § 10) and statutory authority for its petition (Gov. Code, § 12070 et seq.), recites the controversy over the conflicting appointments to a single vacancy on the Court of Appeal, urges the importance of “the question of the power of the Lieutenant Governor to act as Governor during the physical absence of the Governor from the state,” and prays that this court “determine when the Governor is absent from the state within the meaning of

Section 10 of

article V of the California Constitution and, in so doing, set forth standards which may be applied to facts and circumstances which may foreseeably arise in the future.” We deal first with our jurisdiction and the standing of petitioners to invoke it. Our exclusive jurisdiction to determine all questions arising under

article V,

section 10 is clear and unambiguous. The final sentence in the

section states, however, that “[standing to raise questions of vacancy or temporary disability is vested exclusively in a body provided by statute,” namely, the Commission. As submitted to the Assembly by the Constitution Revision Commission,

section 10 of

article V provided for determining questions of vacancy and disability, but did not specify how or by whom the questions could be raised. The provision for exclusive standing in a statutory body was added to the draft on the floor of the Assembly (1 Assem. J. (1966 First Ex. Sess.) pp. 631, 705) at the request of the Office of the Governor, apparently for the purpose of forestalling frivolous or harassing attacks on the validity of gubernatorial actions. It is obvious that absence from the state is a temporary disability within the meaning of

article V,

section 10, and that any dispute as to the Governor’s absence from the state is a matter with respect to which the Commission has exclusive standing before us. Once the question is properly raised, however, nothing in the section’s wording or aims prevents us from concurrently considering pleadings and arguments from interested persons on matters within the scope of the Commission’s question.

For purposes of establishing our present jurisdiction, therefore, we need not consider whether the questions raised by the Governor’s petition concern “vacancy or temporary disability,” as to which the constitutional provision accords him no standing; the filing of the Commission’s petition effects its standing to invoke our jurisdiction and permits us concurrently to consider the issues presented by the Governor’s petition. Because our jurisdiction is exclusive it transcends the procedural limitations on appellate courts imposed by

article VI, sections 10 and 11. Granting of relief, declaratory or otherwise, that ordinarily would be available only from trial courts may be appropriate here. We are not persuaded by the Commission’s petition, however, that

article V,

section 10 calls on us to give advisory opinions. The petition alleges that “the question of the power of the Lieutenant Governor to act as Governor during the physical absence of the Governor from the state encompasses the entire spectrum of executive power” and prays that in “determin[ing] when the Governor is absent from the state within the meaning of [art. V, § 10]” we “set forth standards which may be applied to facts and circumstances which may foreseeably arise in the future.” It is well settled that rendering “advisory opinion” is not a judicial duty imposed by

article III,

section 3, or

article VI, sections 10 or 11 of the Constitution. (Younger v. Superior Court (1978) 21 Cal.3d 102, 119-120 [145 Cal.Rptr. 674, 577 P.2d 1014].) Our “exclusive jurisdiction to determine all questions arising under”

article V,

section 10 is subject to the same qualification. In this case the dispute concerning the Governor’s disability due to absence involves a question that has arisen, and it is properly before us by petition of the Commission. We turn to the principal issue presented by the controversy, namely, the

interpretation of the words “absence from the State.” Preliminarily, we consider and reject the Governor’s contention that under

article V,

section 10, his departure from the state can confer no gubernatorial power on the Lieutenant Governor without a prior petition to this court by the Commission, followed by this court’s determination that the absence would constitute a temporary disability. It is argued that our “exclusive jurisdiction to determine all questions arising under”

article V,

section 10, makes us the only entity that can conclude authoritatively that the Governor is temporarily disabled by absence or other reason. The claimed prerequisite of a petition is based on the Commission’s exclusive “[standing to raise questions of vacancy or temporary disability.” We disagree. To require express judicial authorization before the Lieutenant Governor could act as Governor during the Governor’s absence or other temporary disability would contravene the purpose of

article V,

section 10, to prevent gaps in the availability and continuity of the executive power. As explained in the discussion of our present jurisdiction, the Constitution charges us only with determining “questions” of temporary disability, not with giving advisory opinions in the absence of dispute. The Lieutenant Governor—like any public officer with executive duties—must apply and, if necessary, interpret the law prescribing those duties as found in the Constitution, legislation, and authoritative decisions. Our role is to resolve controversies as to

interpretation, not to dictate initial formulations. The parties offer two possible

interpretations of the words “absence from the State.” The Governor proposes that the term “absence” must be read as an “effective absence,” an absence determined by the state’s need at the time for the particular act by the official then physically present. The Lieutenant Governor, on the other hand, asserts that the term must be given its literal, common meaning of physical nonpresence. We conclude that constitutional and legislative history, contemporaneous

interpretation and historical practice, and considerations of public policy, namely the need for certainty in effectuating executive decisions, support the Lieutenant Governor’s position. The words “absence from the state” have remained unchanged in the California Constitution for 130 years despite several other changes in the pertinent clause. From 1849 to 1966, the Constitution provided that in case of the Governor’s “impeachment” or “absence from the State” his duties “devolve upon” the Lieutenant Governor “until the disability shall cease.” (Cal. Const, of 1849, art. V, § 17; Cal. Const, of 1879, art. V, § 16, with amendments of 1898, 1946 and 1948.) Present

article V,

section 10, adopted in 1966 and amended in 1974, similarly provides that the Lieutenant Governor “shall act as Governor during the impeachment, absence from the State, or other temporary disability of the Governor.” In 1966, during legislative discussion of the proposed amendment to

article V,

section 10, special counsel to the Constitution Revision Commission was asked the meaning of “absence from the state” and its reference to “disability.” Counsel’s response indicated that “absence from the state” meant physical absence in the literal sense; as to the use of the term “disability,” he stated; “. . . [T]he Commission felt that if the constitution should prohibit the Governor from acting then it should be classified as a disability. It is not an inability. The Governor could be someplace outside the state and be very capable of performing his duties by a long distance telephone.

He would be legally disabled from doing so. Disability is more accurate.” Our attention has been called to no previous challenge in court to the proposition that the Governor’s physical absence from California confers full gubernatorial power on a physically present Lieutenant Governor. The state government has functioned under this provision without any question that its language means what it plainly states.

It is argued that the word “absence” should be interpreted to reflect modern conditions of travel and communication and that technology has eliminated in part the objections that drafters of the early Constitutions might have had to permitting the Governor to act from outside the state or to permitting postponement of gubernatorial actions until his return. We note that the Constitution Revision Commission could have proposed a change in the language in 1966 to reflect modern conditions of travel and communication but did not do so.

We are not persuaded that time or technology compels such a change by judicial fiat. We are mindful that some jurisdictions have interpreted similar provisions to prevent the acting governor or other executive from exercising full executive powers, or more precisely, to invalidate the acts of officials empowered to perform executive functions during the absence of the executive from the city or state. The Governor embraces the theory propounded by these cases and contends that not merely physical absence but “effective” absence must be shown before the substitute executive can act.

The rationale of the cases that support his view is summarized in Sawyer (82 Nev. 53, 56 [410 P.2d 748]): “‘absence’ as contained within rules for orderly succession in government means ‘effective absence’—i.e., an absence which is measured by the state’s need at a given moment for a particular act by the official then physically not present.” The conceptual difficulty with the effective-absence test is that virtually any physical absence of the Governor may create a need for action by an acting governor, at least to deal with emergencies.

The Governor here does not claim any power to act from outside the state boundaries, nor does it appear that any such claim has ever been made by his predecessors. Since a physically absent Governor cannot act, the overriding purpose of avoiding a hiatus in the availability of executive power requires that, during the absence, the sole and entire power to act as Governor be transferred to a Lieutenant Governor who is physically within the state. Legislative enactments which implement

article V,

section 10, are in full accord with this view.

Section 12002 of the Government Code provides that “Every law of this State relating to the powers and duties of the Governor and to acts and duties to be performed by others toward him extends to the person performing for the time being the duties of Governor.”

Section 12058 (Gov.

Code), enacted in 1966, provides that “[i]n case of impeachment of the Governor or officer acting as Governor, his absence from the state, or his other temporary disability to discharge the powers and duties of office, then the powers and duties of the office of Governor devolve upon the same officer as in the case of vacancy in the office of Governor, but only until the disability shall cease.” (Italics added.) There is no room in the all inclusive language of these statutes for a watered down “effective” absence or any other concept whereby an acting governor could discharge some but not all of the duties of the governor in his absence.

Our conclusion is also in accord with the contemporaneous and settled

interpretation of the constitutional provision by those charged with its execution. (See State of South Dakota v. Brown (1978) 20 Cal.3d 765, 777-778 [144 Cal.Rptr. 758, 576 P.2d 473] and cases there cited.) We take judicial notice (Evid. Code, § 452, subd. (c)) of the more than 1,400 gubernatorial actions taken in the last 16 years by Lieutenant Governors or other acting governors during the Governor’s absence. The unquestioned acceptance of these exercises of gubernatorial power is evidence of a settled contemporaneous construction deserving of great weight. (City of Los Angeles v.

Rancho Homes, Inc. (1953) 40 Cal.2d 764, 770-771 [256 P.2d 305]; State of South Dakota v. Brown, supra, 20 Cal.3d at pp. 777-778.) “Not lightly vacated is the verdict of quiescent years.” (Anderson Nat. Bank v. Luckett (1944) 321 U.S. 233, 244 [88 L.Ed. 692, 703, 64 S.Ct. 599, 606, 151 A.L.R. 824], quoting from Coler v. Corn Exchange Bank (1928) 250 N.Y. 136, 141 [164 N.E. 882, 884, 65 A.L.R. 879].) The command that the Lieutenant Governor “act as Governor” during the Governor’s absence (art.

V, § 10) places upon the Lieutenant Governor complete, albeit temporary, responsibility for “[t]he supreme executive power of the State” and for “see[ing] that the law is faithfully executed” (art. V, § 1). As acting governor, the Lieutenant Governor is free to act on whatever matters he determines need attention during the Governor’s absence. Thus, the appointment by Lieutenant Governor Curb of Judge Arabian as presiding justice of the Court of Appeal was valid. There remains the question of the Governor’s authority to revoke, rescind, or withdraw the appointment of Judge Arabian.

The Lieutenant Governor contends that his letter submitting the Arabian appointment to the Commission on Judicial Appointments exhausted the appointive power and could not be revoked by gubernatorial act. The leading statement of the principle relied on is in Marbury v. Madison (1803) 5 U.S. (1 Cranch) 137 [2 L.Ed. 60], where President Jefferson’s Secretary of. State, Madison, was held to have a ministerial duty to deliver a document evidencing Marbury’s appointment as justice of the peace made by outgoing President Adams with the advice and consent of the Senate.

Chief Justice Marshall’s opinion states: “The last act to be done by the president is the signature of the commission: he has then acted on the advice and consent of the senate to his own nomination. The time for deliberation has then passed: he has decided. His judgment, on the advice and consent of the senate, concurring with his nomination, has been made, and the officer is appointed.

This appointment is evidenced by an open unequivocal act; and being the last act required from the person making it, necessarily excludes the idea of its being, so far as respects the appointment, an inchoate and incomplete transaction. “Some point of time must be taken, when the power of the executive over an officer, not removable at his will, must cease. That point of time must be, when the constitutional power of appointment has been exercised.

And this power has been exercised, when the last act, required from the person possessing the power, has been performed: this last act is the signature of the commission.” (5 U.S. at p. 157 [2 L.Ed. at p. 67].) California courts have followed that principle. (See Weatherbee v. Cazneau (1862) 20 Cal. 503 [Governor’s interim appointment]; People ex rel. Ryder v. Mizner (1857) 7 Cal. 519, 526 [same]; MacAlister v. Baker (1934) 139 Cal.App. 183 [33 P.2d 469] [city council’s appointment to vacant council seat].) On the other hand, uncompleted appointments are subject to withdrawal. (See Conger v.

Gilmer (1867) 32 Cal. 75 [board of supervisors could reconsider appointment before issuing appointee a commission]; Harrington v. Pardee (1905) 1 Cal.App. 278 [82 P. 83].) Thus, in Harrington, Governor Pardee was held entitled to refuse to issue a commission to a person whose appointment by his predecessor had been confirmed by the Senate, since issuance of the commission was deemed a discretionary act. Harrington is distinguishable here because transmittal of an appointment to the Commission on Judicial Appointments completes the gubernatorial action necessary to an appellate judicial appointment.

Though the Governor issues commissions to new appellate judges (see Gov. Code, § 1340, subd. (d)), the Constitution makes the appointment “effective when confirmed by the Commission on Judicial Appointments.” (Art. VI, § 16, subd. (d); see Gov. Code, § 68121 [confirmation “is effective when filed in writing with the Secretary of State”].) Even though submission for commission confirmation completes the gubernatorial action necessary for an appointment to an appellate judgeship, it does not complete the appointive process or confer even an interim right to assume office.

Under those circumstances may the Governor withdraw the appointment before confirmation? Past governors appear to have withdrawn appointments from commission consideration without challenge of their power to do so. (See Partial Rep. of Joint Judiciary Com. on Administration of Justice, pp. 38-39, 2 Appen. to Sen. J. (1959 Reg. Sess.), testimony of Chief Justice Gibson.) There are good reasons for upholding the power. The fact that the appointee has not yet acquired any rights eliminates the objection that withdrawal constitutes removal from office.

The withdrawal power prolongs gubernatorial scrutiny of the appointment, furthering the confirmation’s ultimate purpose of assuring thorough consideration of the candidate’s qualifications. (See Nelson, Variations on a Theme—Selection and Tenure of Judges (1962) 36 So.Cal.L.Rev. 4, 19-26.) Finally, the general rule in other states is that “where the nomination must be confirmed before the officer can take the office or exercise any of its functions, the power of removal is not involved and nominations may be changed at the will of the executive until title to the office is vested.” (McChesney v.

Sampson (1930) 232 Ky. 395, 401 [23 S.W. 2d 584]; accord: McBride v. Osborn (1942) 59 Ariz. 321 [127 P.2d 134] [upholding withdrawal]; Burke v. Schmidt (1971) 86 S.D. 71 [191 N.W.2d 281]; In re Advisory Opinion to the Governor (Fla. 1971) 247 So.2d 428, 433; State ex rel. Todd v. Essling (1964) 268 Minn. 151, 156 [128 N.W. 2d 307].) Therefore we conclude that Governor Brown’s withdrawal of the Arabian appointment was valid. Let a peremptory writ of mandate issue directing the Commission on Judicial Appointments to exercise its discretion with respect to the appointment of Justice Jefferson. Tobriner, Acting C.

J., Mosk, J., Clark, J., Richardson, J., and Taylor, J., concurred.

Article V,

section 10 provides in full: “The Lieutenant Governor shall become Governor when a vacancy occurs in the office of Governor. [¶] The Lieutenant Governor shall act as Governor during the impeachment, absence from the State, or other temporary disability of the Governor or of a Governor-elect who fails to take office. [¶] The Legislature shall provide an order of precedence after the Lieutenant Governor for succession to the office of Governor and for the temporary exercise of the Governor’s functions. [¶] The Supreme Court has exclusive jurisdiction to determine all questions arising under this section. [¶] Standing to raise questions of vacancy or temporary disability is vested exclusively in a body provided by statute.”

Article VI,

section 16, subdivision (

d) of the Constitution provides that an appointment by the Governor to fill a vacancy in a Court of Appeal “is effective when confirmed by the Commission on Judicial Appointments.” The Commission on Judicial Appointments consists of the Chief Justice, the Attorney General, and, when the appointment to be considered is to a Court of Appeal vacancy, the senior presiding justice of the affected Court of Appeal. (Art.

VI, § 7.) The Commission, which consists of the President Pro Tern, of the Senate, the Speaker of the Assembly, the President of the University of California, the Chancellor of the California State Colleges, and the Director of Finance (Gov. Code, § 12070), “shall have exclusive authority to petition the Supreme Court to decide any questions relating to the existence of a temporary disability of the Governor” (Gov. Code, § 12072).

Section 12073 provides for exclusive jurisdiction with regard to questions relating to termination of the temporary disability of the Governor. If that were not so,

section 10 would not include the phrase “or other temporary disability of the Governor.” (Italics added.) See also post page 118 for dialogue during legislative discussion of proposed amendment to

article V,

section 10. Transcript, Assembly Interim Committee on Constitutional Amendments, February 23, 1966, pages 29-34. Additional dialogue supports a literal

interpretation of the word “absence”: Legislator: “And then, of course, absence from the state. What does absence from the state mean? Is that defined somewhere else? Suppose the Governor goes to Timbuktu or somewhere outside of the United States. During that time the Lieutenant Governor is by this provision acting temporarily. Is that right? Counsel: “That’s correct. That’s the existing law.

We put these two examples [impeachment and absence from the state] in...because we wanted to be sure that these were construed to be temporary disability, because if we just said temporary disability we think it would be reasonable for someone to construe impeachment as not being temporary disability.” {Id., p. 33.) We have no doubt that counsel’s reference to “existing law” was a reference to the Constitution as it read prior to the amendments then being discussed.

Historical research reveals that in the past 16 years more than 1,400 gubernatorial actions (proclamations, executive orders, pardons and signing of legislation) have been taken by an acting governor while the Governor was physically absent from the state. Sawyer v. First Judicial District Court (1966) 82 Nev. 53 [410 P.2d 748]; Gelinas v. Fugere (1935) 55 R.I. 225 [180 A. 346]; Cytacki v. Buscko (1924) 226 Mich. 524 [197 N.W. 1021]; State ex rel. Olson v. Lahiff (1911) 146 Wis. 490 [131 N.W. 824]; Watkins v. Mooney (1903) 114 Ky. 646 [71 S.W. 622]; Mayor of Detroit v. Moran (1881) 46 Mich. 213 [9 N.W. 252].

We find these cases neither persuasive nor controlling. Also of interest is the experience of former Governor Earl Warren. In the Memoirs of Earl Warren (1977) at pages 264-265, he tells of leaving unsigned bills in a safe deposit box so that a contemporary Lieutenant Governor could not sign them into law while Warren was on a trip to England. We are not here called upon to decide at what point the appointment of a judge not subject to confirmation by the Commission on Judicial Appointments becomes irrevocable. Assigned by the Acting Chairperson of the Judicial Council.