NEWMAN, J., Concurring. I agree that the withdrawal of the Arabian appointment was valid and that the writ should issue. I do not agree that “a physically absent Governor cannot act” (ante, p. 119).
That phrases in a constitution were deemed apt for a horse-and-wagon era does not ordain that we eschew sensible, up-to-date analysis of their meaning 130 years later. Justice Holmes once cautioned: “[W]hen we are dealing with words that also are a constituent act, like the Constitution of the United States, we must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters... .The case before us must be considered in the light of our whole experience and not merely in that of what was said a hundred years ago.... We must consider what this country has become. ...” (Missouri v. Holland (1920) 252 U.S. 416, 433-434 [64 L.Ed. 641, 647-648, 40 S.Ct. 382, 11 A.L.R. 984].)
His wise admonition applies here, as does this comment by Chief Justice Hughes in Home Bldg. & Loan Ass’n. v. Blaisdell (1934) 290 U.S. 398, 442 [78 L.Ed. 413, 431-432, 54 S.Ct. 231, 88 A.L.R. 1481] (see also Miller, The Elusive Search for Values in Constitutional Interpretation (1979) 6 Hastings ConstL.Q. 487): “It is no answer to.. .insist that what the provision of the Constitution meant to the vision of that day it must mean to the vision of our time. If by the statement that what the Constitution meant at the time of its adoption it means to-day, it is intended to say that the great clauses of the Constitution must be confined to the interpretation which the framers, with the conditions and outlook of their time, would have placed upon them, the statement carries its own refutation. It was to guard against such a narrow conception that Chief Justice Marshall uttered the memorable warning—‘We must never forget that it is a constitution we are expounding’ (McCulloch v. Maryland, 4 Wheat. 316, 407)—‘a constitution intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs.’ Id., p. 415.... [If] [W]e [124]find no warrant for the conclusion that. . . the founders of our Government would have interpreted the clause [at issue] differently had they had occasion to assume that responsibility in the conditions of the later day.” (Italics in that final sentence added.)
In our case the focus of the majority opinion is “absence.” How to interpret the phrase “absence from the State” is labeled “the principal issue presented by the controversy” (ante, p. 116).
I believe that we are better guided if we focus not on “absence” but instead on the words “other temporary disability.” The California Constitution in article IV, § 21 (b) provides for “[fjilling of the office of Governor should the Governor be killed, missing, or disabled, until the Governor.. .is able to perform the duties of the office” (italics added). Article V, § 10 refers to other “temporary exercise of the Governor’s functions”; and it orders the Lieutenant Governor to “act as Governor during the impeachment, absence from the State, or OTHER TEMPORARY DISABILITY of the Governor” (emphasis added).
My majority colleagues conclude that “absence” means having crossed a state boundary. Might it rather mean now what the draftsmen intended it to mean 130 years ago; that is, absence constitutes a disability like other temporary disabilities when now, as then, in fact it is disabling? (Note again the words “disabled” and “able” in art. IV, § 21 (b), quoted in my preceding paragraph.)
When the Governor is absent from the state is he in fact disabled from performing the duties of his office? Indeed he is not. Car-to-office, air-to-ground, and ship-to-shore calls are routine; so are conference calls and closed-circuit TV consultation. Many tasks that Governors have performed while temporarily residing in San Francisco or Los Angeles, say, could be done from any city, within or without California. Constant travelers such as the President of the United States, the Governors of other states with problems comparable to ours, the mayors of great cities, and countless government and corporate executives every day benefit from telecopiers, distance-ignoring word-processors, “talking” typewriters, signature reproducers, instant information-retrieval, other marvels not affected by state or even international boundaries. (Cf. Hanna, Law Office of the Future (Feb. 1979) N.J. State Bar J. No. 86, p. 10; Brown, N.Y.U. Law Professor to Teach on Coast via TV, N.Y. Times (Sept. 5, 1979) (“an interactive hookup by satellite that will permit him to take questions and engage... in discussion for an hour”).
[125]So therefore should we infer that, in the 20th century, absence is never disabling? The answer is No. The Lieutenant Governor (or his surrogate, should he too be temporarily disabled) must be alert not only “[t]o meet the needs resulting from war-caused or enemy-caused disaster” (art. IV, § 21) but also to act as Governor whenever the elected Governor suffers a true disability. It could be caused by serious illness. It could occur when he is incommunicado—in a jungle or a mountain wilderness, for instance, or because of a natural disaster or other catastrophe. It could be the result of electronic or other malfunctioning. But the test should always be “disability.” Absence that is not disabling is not a temporary disability.
The 1849 and 1879 constitutions talked of the Governor’s “inability to discharge the powers and duties of the said office” and required the Lieutenant Governor to act “until the disability shall cease.” To hold in this Centennial Year 1979 that the 130-year-old tradition must be frozen until modernized by constitutional amendment seems almost irrational and yet radical. By no means does rationality call for a Gold Rush Days approach to governing. (See the quotations from Justices Holmes and Hughes, supra.) And when we contemplate its antiquated, stifling, and potentially hurtful impact on use of the executive power in our complex state, cannot the majority’s approach here fairly be labeled radical (albeit reactionary)?
The majority concede that “the purpose of article V, section 10, [is] to prevent gaps in the availability and continuity of the executive power” (ante, p. 117); and they refer to “public policy, namely the need for certainty in effectuating executive decisions” (ante, p. 117). Yet neither the availability nor the continuity of executive power need be affected by mere absence. (See In re Advisory Opinion to the Governor (Fla. 1959) 112 So.2d 843.) Moreover, serious discontinuity and uncertainty and even bizarre effects can result from the pretense that “a physically absent Governor cannot act.” (Ante, p. 119. The Justice Jefferson vs. Judge Arabian contretemps here is illustrative; and cf. Program of Would-Be Acting Governor Curbed, S.F. Examiner (Nov. 8, 1979) p. 46.1)
[126]What Was the True Intent in 1966?
The scores of individuals involved in the drafting and approval of the 1966 revision of the words concerning us that now are in effect (“The Lieutenant Governor shall act as Governor during the impeachment, absence from the State, or other temporary disability of the Governor”) might have written, “The Lieutenant Governor shall act as Governor during the impeachment or other temporary disability of the Governor.” Instead they included and thus preserved “absence from the State.” Does that imply an intent in 1966 to cast in concrete all the old assumptions on what those four words demand? I think not.
In February 1966 the California Constitution Revision Commission submitted the first of many reports to the Legislature. It was lengthy (212 pages). It proposed first, that many words (16,000 out of 22,000) be deleted from the Constitution (from articles III to VIII and also XXIV); second, that many other words be left unchanged; third, that new wordings be adopted to effect major and minor revisions, several of them simplificatory only.
Was there an intent in 1966 to freeze the nonjudicial, archaic interpretation of “absence from the State” that my majority colleagues now decree? Their opinion relies on excerpts from February 23, 1966, testimony before the Assembly Interim Committee on Constitutional Amendments. They summarize it as follows (ante, p. 118): “[Sjpecial 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 some place 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.’”
The quoted words (and also those in the majority’s fn. 5) are best understood if we check the full testimony. “To use snippets.. .is perilous.” (People v. Tanner (1979) 24 Cal.3d 514, at p. 539 [156 Cal.Rptr. 450, 596 P.2d 328] (conc. opn.).)
[127]The Commission’s special counsel and the staff attorney who testified with him understandably had to ad-lib many answers to often-tough questions put by legislators at the hearing.2 I doubt that the special counsel, if pressed, could have documented his view (quoted in my excerpt from the majority opinion) as to what it was “the Commission felt.” There were some 80 commissioners—including 6 legislative members, 17 “ex officio legislative members,” and 11 individuals who had resigned or died. The draft language that puzzles us here was a tiny segment of a huge set of initial recommendations. Most commissioners, obviously, “felt” nothing whatsoever on our subject.
Regarding what “the Commission [might have] felt,” are not the most reliable guides the words that appear in the Commission’s formal proposal? It read: “The Lieutenant Governor. .. shall act as Governor during the impeachment, absence from the State, or other temporary disability of the Governor. .. .The Legislature shall provide for an order of precedence after the Lieutenant Governor. . .for the temporary exercise of [the Governor’s] functions.”
To be contrasted are certain words (which I now bracket and italicize) that the Commission proposed to delete from the then existing Constitution, as amended in 1948: “In case of impeachment of the 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].”
It seems clear that the proposed deletion of “to discharge the powers and duties of office” evidenced no intent to change “other temporary [128]disability” and that the deletion of “but only until the disability shall cease” involved mere style. Those two phrases are helpful, though, in analyzing the 1946 deletion of the word “inability.”
Inability and Disability
Readers will recall, from an earlier paragraph in this opinion, the dictum of the Revision Commission’s special counsel that “[Disability. . .is not an inability.” The 1849 constitution provided that “the powers and duties of the office shall devolve upon the Lieutenant Governor. .. until the disability shall cease”; and “disability” meant impeachment, absence from the State, and “inability to discharge the powers and duties of the office” (italics added). There was no change in 1879.
In 1946 the clause was amended to read, “In case of the impeachment of the 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..., but only until the disability shall cease.” In this lawsuit there is not even a scrap of evidence that suggests any intent by anyone in 1946 to distinguish “disability” from “inability” For nearly a century the words had been treated as synonymous. After 1946 they still were synonymous. The special counsel erred, I think, when he ad-libbed his brief comment in 1966.
Further, a Revision Commission memo on “Presentation of proposed Article V,” addressed by the staff attorney on April 7, 1966, to the Chairman of the Commission, the Chairman of its Article V Committee, and the Chairman of its Drafting Committee, on page 3 states: “Standard of ‘temporary disability’ has a sufficiently definite and understood meaning to serve as a reasonable guideline for the court. Additional detail might bind the court, in a situation which we cannot now foresee, in a way that defeats the otherwise clear purpose underlying the scheme of succession and disability provisions.” What was that clear purpose? It was to have the “scheme of succession” take effect whenever the Governor becomes temporarily disabled, for any reason.
Quite comparable is this excerpt from the hearings: “Song: ... [W]hat if a Governor is so physically disabled he’s confined to bed? His mental process is working quite well. I would assume, then, from [129]what you say, that the court can declare the office vacant. [If] [Staff Attorney]: They would have that authority, yes, subject to all the responsibilities placed upon a judiciary construing the Constitution. [If] Song: Shouldn’t certain limitations be spelled out in the Constitution? [IT] [Staff Attorney]: We felt that the spelling out of certain limitations and describing specific situations left the body which has to make this ultimate determination, a very difficult determination, really insufficient tools to do it with.”
Nonetheless the majority opinion here does spell out an indisputably needless limitation; i.e., that mere absence is a disability, always.
In sum, analysis and history justify a conclusion that “absence from the State” does mean now what it meant when it was first written. In 1979, as in 1849, absence should effect the transfer of gubernatorial power only when in fact it is disabling, temporarily.
Official Travel?
A hidden weakness in the majority opinion is disclosed when we examine its reach. Californians are advised that “the sole and entire power to act as Governor” is transferred to the Lieutenant Governor when he is within the state while the Governor is outside (ante, p. 119; italics added). Similarly he has “complete, albeit temporary, responsibility”; and he is “free to act on whatever matters he determines need attention during the Governor’s absence” (ante, p. 120; italics added).
What those words overlook is that most travels by modern Governors are for official state purposes. Most trips involve something more than seeking federal office, exploring a distant continent, or vacationing with family or friends. Yet if the Lieutenant Governor truly does have “the sole and entire power,” if his duties do involve “complete...responsibility,” if he is “free to act on whatever matters he determines need attention,” then may he not legally intervene in the official projects of the traveling Governor?
To illustrate: How should a Congressional committee respond if a telegram or phone call from a Sacramento-based Lieutenant Governor purports to negate the on-going testimony of a Governor who is in Washington, D.C., to describe California’s emergency needs? When the [130]Governor is absent here but present there, who articulates authoritatively our state’s concerns at the out-of-state headquarters of the innumerable officials who, pursuant to negotiations that might involve the Governor, supply federal funds for state use? Who speaks and acts for California at Governors’ sessions, at formal meetings with other-state and overseas investors, at innumerable other “outside forums” where the Governor’s main concerns demonstrably are official concerns?
The majority opinion fails to recognize those questions. It ignores even more intricate questions as to the need for limitations on a Lieutenant Governor’s power to undermine indirectly, in Sacramento, gubernatorial projects outside the state that for various reasons an ambitious Lieutenant Governor might not wish to countermand or modify directly.
Finally, the majority’s words are so comprehensive that they may even authorize improbable, yo-yo-like contests regarding rescission or revocation of prior acts of the Governor. In this case, for example, what might have happened if the Lieutenant Governor, after March 28, 1979, and during a subsequent absence of the Governor, had withdrawn the Jefferson appointment and reappointed Arabian?
I conclude by quoting the possibly prophetic comment of a legislator during the 1966 committee hearings: “Assuming we have a Democratic Governor and a Republican'Lieutenant Governor, I can see the court getting into the midst of a tremendous political brawl. . .
If, hypothetically, Earl Warren had been Chief Justice of California and not a politically ambitious Governor, would he have construed “absence from the State” restrictively? Cf. the majority’s footnote 8 and also Rodda, The not-always-accurate memoirs of Earl Warren, (Nov. 1977) Cal. J. page 378.
That sometimes the correct answers were not known is shown by this exchange: “WILLSON:.. .What is the process in the Constitution for impeaching the Governor of the State of California? Is there a trial by the Assembly and trial by the Senate? [¶] [SPECIAL counsel]: He is tried by the Assembly, I believe, he is tried by the lower house. [¶] WILLSON: Is there a written charge that claims he should be impeached on certain charges? Is that the way it operates? [¶] [SPECIAL COUNSEL]: The specific form, the pleading, is not in the Constitution, Mr. Willson, and I’m not sure what it is.”
One wonders why the staff attorney said that “the Supreme Court could provide for an acting Governor” in this excerpt: “[I]f the Governor were merely impeached the Supreme Court could provide for an acting Governor in the Lieutenant Governor who would take over the duties of office until the Governor was either convicted, in which case the Lieutenant Governor would become Governor, or was acquitted, in which case the Governor would resume his office.”
The two excerpts exemplify the kind of partially correct answering that often typifies legislative committee hearings.