Opinion
As Modified on Denied of Rehearing May 24, 1977.
Opinion on pages 281-307 omitted.
HEARINGS GRANTED
For Opinion on Hearing, see 144 Cal.Rptr. 758, 576 P.2d 473.
[562 P.2d 15] [138 Cal.Rptr. 15] Gibson, Dunn & Crutcher, Charles S. Battles, Jr., Thomas E. Holliday, Beverly Hills, for petitioner.
Evelle J. Younger, Atty. Gen., by Gregory W. Baugher, Deputy Atty. Gen., for respondent.
PUGLIA, Presiding Judge.
The State of South Dakota seeks a writ of mandate to compel the Governor of the State of California, Edmund G. Brown, Jr., to issue a warrant of rendition for Dennis James Banks.
The petition was originally filed on December 28, 1976, in the California Supreme Court, which transferred it to this court.
We have been referred to but one previous case in the history of our country where the governor of one state has sought judicial intervention to compel the governor of another state to honor an extradition request. In Ex parte Kentucky v. Dennison (1861) 65 U.S. (24 How.) 66, 16 L.Ed. 717, Governor Dennison of Ohio had refused Kentucky's demand for the extradition of a fugitive indicted in Kentucky for the crime of assisting a slave to escape. Kentucky petitioned the United States Supreme Court for an order compelling Governor Dennison to comply with the extradition clause of the United States Constitution and the implementing statute (Act of February 12, 1793, ch. 7, § 1, 1 Stat. 302; see now 18 U.S.C.A. § 3182). The Supreme Court held unequivocally 'that the right given to 'demand' implies that it is an absolute right; and it follows that there must be a correlative obligation to deliver, . . .' ( Ex parte Kentucky v. Dennison, supra, 65 U.S. (24 How.) at p. 103, 16 L.Ed. 717.) The court insisted that 'it has never been supposed that this duty involved any discretionary power, or made [the governor] anything more than a mere ministerial officer.' (Id., at p. 106, 16 L.Ed. 717.) Nevertheless, the Supreme Court refused to order Governor Dennison to perform this absolute ministerial duty, on the ground that 'the Federal Government, under the Constitution, has no power to impose on a State officer, as such, any duty whatever, and to compel him to perform it; . . .' (Id., at p. 107, 16 L.Ed. 717.)
The extradition clause, article IV, section 2, clause 2, of the United States Constitution reads as follows: 'A person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime.'
The historical context of the litigation is not without significance. The case arose on the eve of the Civil War. In early 1861 when the case was argued and decided, the Union had already been riven by the secession of several states disaffected by the national controversy over slavery and states' rights. The court's reasoning has been attributed to the states' rights theories of its author, Chief Justice Taney. (See authorities and discussion in Comment, Interstate Rendition: Executive Practices and the Effects of Discretion (1956) 66 Yale L.J. 97, 112, fns. 81-83, and Note, Rendition: 'The Governor's Discretion' (1966) 2 Lincoln L.Rev. 48, 59, fn. 38.)
[562 P.2d 16] [138 Cal.Rptr. 16] Faced with the bar to federal enforcement imposed by Kentucky v. Dennison, South Dakota in the present action seeks to invoke the power of a state court against the Governor. In so doing, South Dakota relies not only upon the federal Constitution and statute, but upon the California Uniform Criminal Extradition Act, Penal Code section 1547 et seq., modeled after the Uniform Criminal Extradition Act of 1936 (U.C.E.A.) and adopted by California in 1937.
Because of South Dakota's reliance upon state law, it is unnecessary for us to decide whether the obligations created by the federal provisions are enforceable in state court, and we expressly decline to do so. Rather, we conclude that Penal Code section 1549.2 inposes a mandatory duty upon the Governor, independent of the federal provisions, and that this duty is judicially enforceable.
Governor Brown argues that the opinion in Kentucky v. Dennison interprets the federal Constitution and statute as having created obligations upon state governors which are merely moral and hence not legally enforceable in any court, state or federal. In support of this proposition, the following passage from the opinion is cited: 'But looking to the subject-matter of this law, and the relations which the United States and the several States bear to each other, the court is of the opinion, the words [of the Act of February 12, 1793, (ch. 7, § 1, 1 Stat. 302)] 'it shall be the duty' were not used as mandatory and compulsory, but as declaratory of the moral duty which this compact created, . . .' (65 U.S. (24 How.) at p. 107, 16 L.Ed. 717.)
I.
It is well settled that the states are free to enact statutes expanding the scope of interstate rendition beyond that provided by federal law. (New York v. O'Neill (1959) 359 U.S. 1, 79 S.Ct. 564, 3 L.Ed.2d 585; In re Cooper (1960) 53 Cal.2d 772, 3 Cal.Rptr. 140, 349 P.2d 956.) Indeed, it was in recognition of this fact that the Uniform Criminal Extradition Act of 1936 was promulgated, and subsequently adopted by some 46 states and territories, including both South Dakota (8 S.D.C.L., § 23-24-1 et seq.) and California (Pen.Code, § 1547 et seq.)
See Commissioners' Prefatory Note, 11 West's Uniform Laws Annotated, supra, Criminal Law and Procedure, page 53.
The fact that South Dakota has adopted the U.C.E.A. is interesting but without legal significance. 'The Extradition Act is enforceable within any state that adopts it whether or not the state requisitioning a person charged with crime has a similar statute.' (In re Morgan (1948) 86 Cal.App.2d 217, 224, 194 P.2d 800, 805.) Reciprocity is not required.
Alone among the adopting jurisdictions, however, California modified section 7 of the U.C.E.A. to eliminate a governor's discretion to deny rendition. Section 7 of the Uniform Act as promulgated states: 'If the Governor decides that the demand should be complied with, he shall sign a warrant of arrest, which shall be sealed with the state seal, and be directed to any peace officer or other person whom he may think fit to entrust with the execution thereof. The warrant must substantially recite the facts necessary to the validity of its issuance.' (Emphasis added.) This provision appears to give a governor virtually unreviewable discretion to deny extradition. But when the Uniform Act was adopted in California in 1937, the Legislature substituted the following (in Pen.Code, § 1549.2) for the above-quoted clause: 'If a demand conforms to the provisions of this chapter, the Governor or agent authorized in writing by the Governor whose authorization has been filed with the Secretary of State shall sign a warrant of arrest, which shall be sealed with the State Seal, and shall be directed to any peace officer or other person whom he may entrust with the execution thereof. The warrant must substantially recite the facts necessary to the validity of its issuance.' (Emphasis added.) (Pen.Code, § 1549.2.)
See compilation of Variations from Official Text following section 7 of the U.C.E.A. in 11 West's Uniform Laws Annotated, supra, at page 181.
This language was in the original bill, Senate Bill 357 (1937 Reg. Sess.) as introduced by Senator DeLap on January 20, 1937. There is no legislative history to identify its source. For a possible influence on this legislation, see Becker, Some New Developments in the Law of Interstate Extradition (1933) 8 State Bar Journal 223, 227: 'The writer of this article firmly believes that the time is near at hand when the antiquated doctrine of 'asylum' on which the law of extradition is founded, will be abandoned . . ..'
[562 P.2d 17] [138 Cal.Rptr. 17] Although South Dakota emphasizes its primary reliance on California rather than federal law, neither of the parties to this litigation have noted this important departure from the Uniform Act. However, one prominent California practice book states that 'If the demand . . . is in proper form the Governor must sign a warrant of arrest reciting the necessary facts. (P.C. 1549.2; see 9 U.L.A. 305; . . .)' (Emphasis added.)
Witkin, California Criminal Procedure (1963) Jurisdiction and Venue, section 57, page 57. See also Fricke and Alarcon, California Criminal Procedure (7th ed. 1967) Extradition, page 44: 'Where the demand for extradition complies with the legal requirements, the Governor of the state in which the defendant is located issues a warrant of arrest, . . . (Penal Code, Sec. 1549.2)'; 2 Lincoln Law Review, supra, at page 50, footnote 10.
The conclusion that Penal Code section 1549.2 imposes a mandatory, nondiscretionary duty upon the Governor finds further support in Penal Code section 1548.1, which declares, 'Subject to the provisions of this chapter, the Constitution of the United States, and the laws of the United States, it is the duty of the Governor of this State to have arrested and delivered up to the executive authority of any other state any person charged in that State with treason, felony or other crime, who has fled from justice and is found in this State.' (Emphasis added.)
Significantly, the State of Washington, in adopting this section (§ 2 of the U.C.E.A.) substituted 'the governor of this state may in his discretion,' for 'it is the duty of the Governor of this state to.' (See Variations from Official Text, 11 West's U. Laws Ann., supra, Crim.L. and Proc., p. 62.)
Penal Code section 1554 is not inconsistent with the mandatory nature of the Governor's duty. That section provides that 'The Governor may recall his warrant of arrest or may issue another warrant whenever he deems it proper.' Section 1554 simply permits the Governor to withdraw his warrant when it is no longer necessary, as when the fugitive has absconded from the asylum state, has returned voluntarily to the demanding state, or the demand has been withdrawn. In addition, when it appears during the pendency of rendition proceedings that the warrant contains a formal or procedural defect, the authorization to withdraw and reissue the warrant avoids the delay required for a new demand. Quite obviously, section 1554 has broader application to extraditions which are expressly made discretionary by statute (see fn. 13, post, p. ___, 138 Cal.Rptr. p. 18) than to nondiscretionary extraditions under Penal Code section 1549.2. This limitation follows from the familiar rule of statutory construction that 'a general provision is controlled by one that is special, the latter being treated as an exception to the former.' (Rose v. State of California (1942) 19 Cal.2d 713, 723-724, 123 P.2d 505, 512.)
Moreover, with the exception of one early dictum, California case law has repeatedly emphasized the nondiscretionary nature of the Governor's duty with respect to extradition. (In re Russell (1974) 12 Cal.3d 229, 234, 115 Cal.Rptr. 511, 514, 524 P.2d 1295, 1298, 'extradition is not a matter of mere comity, but an absolute right of the demanding state and duty of the asylum state under the federal constitution.'; In re Morgan (1966) 244 Cal.App.2d 903, 910, 53 Cal.Rptr. 642, 647. 'It is now settled that extradition under the terms of the federal Constitution (see U.S.Const., art. IV, § 2, cl. 2; 18 U.S.C.A. § 3182; Pen.Code, §§ 1548.1, 1548.2) is an absolute duty and right. It is not a matter of mere comity, subject to the pleasure of each state.'; this court itself recently repeated this principle in In re Golden (1977) 65 Cal.App.3d 789, 795, 135 Cal.Rptr. 512; see also In The Matter of Romaine (1863) 23 Cal. 585, 589-591.)
In re Manchester (1855) 5 Cal. 237, 238. It goes without saying that Manchester was written long before the California Uniform Criminal Extradition Act was passed in 1937.
In many states of the union, the judiciary will not issue a writ of mandate to compel a governor to act even where his duty is absolute and ministerial. California is not among them. For nearly a century, the California Supreme Court has held [562 P.2d 18] [138 Cal.Rptr. 18] that a writ of mandate will issue to compel the Governor to perform ministerial acts required by law. (Jenkins v. Knight (1956) 46 Cal.2d 220, 222-223, 293 P.2d 6.) In exercising this power, the courts have either issued or affirmed their power to issue writs of mandate to compel the governor to sign a patent for land (Middleton v. Low (1866) 30 Cal. 596, 603); to verify and deposit a statutory enactment in the office of the Secretary of State (Harpending v. Haight (1870) 39 Cal. 189, 209-210; to act upon a petition to appoint election commissioners Elliott v. Pardee (1906) 149 Cal. 516, 520, 86 P. 1087); to exercise his power to appoint notaries public (Hollman v. Warren (1948) 32 Cal.2d 351, 356-357, 196 P.2d 562); and to issue a writ of election to fill vacancies in the Legislature (Jenkins v. Knight, supra, 46 Cal.2d at p. 224, 293 P.2d 6).
See Comment, Interstate Rendition: Executive Practices and The Effects of Discretion, supra, 66 Yale Law Journal at page 99.
We therefore hold that if a demand for extradition conforms to the provisions of the California Uniform Criminal Extradition Act (Pen.Code, § 1547 et seq.), the governor has a ministerial duty to comply with the demand, which duty may be compelled by the issuance of a writ of mandate.
Of course, our holding does not apply to extraditions which are expressly made discretionary by the Penal Code, e. g., extradition of persons who left the demanding state involuntarily (Pen.Code, § 1549); those who were not in the demanding state at the time of the commission of the crime (Pen.Code, § 1549.1); and, with the consent of the Attorney General, extradition of persons against whom criminal charges are pending in California (Pen.Code, § 1553.1).
II.
South Dakota's petition alleges that its demand and accompanying documents comply with Penal Code section 1548.2, and show that the fugitive, Dennis James Banks, was convicted in July 1975 in Custer County Circuit Court of armed riot and assault with a dangerous weapon, both felonies; and that while on bail awaiting sentencing, Banks fled the state. The petition further alleges that on February 13, 1976, Banks was apprehended in California and arraigned in San Francisco Municipal Court on a fugitive complaint; that Governor Brown received South Dakota's extradition demand on or about February 15, 1976; and that since that date Governor Brown has 'failed and refused to issue a warrant as requested or to cause the requested delivery of the aforesaid Dennis James Banks to an agent of Petitioner.'
In an affidavit accompanying the opposition to South Dakota's petition, dated January 18, 1977, Governor Brown's Deputy Legal Affairs Secretary, Alice A. Lytle, states that on March 11, 1976, the Attorney General advised Governor Brown that South Dakota's demand 'appeared to substantially comply with the requirements of the extradition laws;' that action on the request was deferred pending resolution of federal proceedings to remove Banks to Oregon to face federal fugitive charges in that state; that on or about May 1, 1976, she was informed that Banks had been arrested in Oregon; that the federal charges in Oregon were dismissed on or about May 12, 1976, and that on or about June 9, 1976, Governor Straub of Oregon announced that he would not act on South Dakota's request for extradition because Banks had returned to California.
On January 20, 1977, we ordered Governor Brown to show ow cause why South Dakota's petition should not be granted. The Governor's return, filed February 22, 1977, does not controvert the factual allegations of the petition, and those allegations are therefore deemed admitted. (See Code Civ.Proc., § 1091; California Portland Cement Co. v. State Bd. of Equalization (1967) 67 Cal.2d 578, 582, fn. 5, 63 Cal.Rptr. 5, 432 P.2d 700.) Rather, the return asserts that 'it is not the prerogative of either the courts or the Legislature to compel the Governor to exercise his discretion in any particular manner or to force him to make decisions which he is not yet prepared to make. If the Governor, or any elected official, abuses discretion which he alone is empowered to exercise, he is answerable to the electorate and not to the courts.' The preceding discussion in Part I of this opinion demonstrates the error of the Governor's[562 P.2d 19] [138 Cal.Rptr. 19] position, both in general and as to this particular case.
The notion that the executive branch of the federal government is not answerable to the legislative or judicial branches has similarly been rejected recently. (See, e. g., United States v. Richard M. Nixon (1974) 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039; executive privilege; Note, Impoundment of Funds (1973) 86 Harv.L.Rev. 1505, refusal to spend funds appropriated by Congress.)
The Governor argues, however, that he has not refused to issue a warrant, but is only exercising his right, under Penal Code section 1548.3 to investigate the case. He suggests that the petition therefore may be premature. In an affidavit accompanying the return, the Governor's Deputy Legal Affairs Secretary avers: 'That between the time Governor Brown received South Dakota's extradition request and the time Dennis James Banks returned to California, numerous . . . letters, petitions, and affidavits were received by Governor Brown's office raising . . . substantial arguments in opposition to the extradition;
'That as soon as it became clear that Governor Brown had jurisdiction to decide whether Dennis James Banks should be extradited to South Dakota, an extensive investigation was begun of the numerous allegations that had been made in opposition to the extradition;
'That during the course of this investigation, conflicting evidence has been developed concerning some of the most serious objections to the extradition of Dennis James Banks, and that further investigation has been and is required;
'That until that investigation can be completed and the evidence can be fairly weighed, it would be a disservice to the State of South Dakota, to Dennis James Banks, and to the People of California, for any decision to be made on the South Dakota extradition request.'
Other than these generalities in the affidavit, we are not informed of the specific focus of the Governor's investigation or of the progress toward its completion.
The Governor's reliance on Penal Code section 1548.3 is misplaced. That section permits the Governor to 'call upon the Attorney General or any district attorney in this State to investigate or assist in investigating the demand, and to report to him the situation and circumstances of the person so demanded, and whether he ought to be surrendered according to the provision of this chapter.' (Emphasis added.) By its terms, section 1548.3 authorizes an investigation to determine whether the person demanded comes within the provisions of the California Uniform Criminal Extradition Act. It plainly does not comprehend investigations to determine whether a fugitive ought not to be surrendered on general equitable grounds, or, as alleged in the Governor's return, because of 'conflicting evidence . . . concerning . . . serious objections to the extradition' unless those objections relate to a failure to comply with the requirements of Penal Code section 1548.2. The Governor has conceded that South Dakota's demand complies with Penal Code section 1548.2. Having made this determination, there is nothing further to investigate. He must issue the warrant of extradition. Since he has failed or refused to perform this mandatory ministerial duty, South Dakota's petition must be granted.
Issuance of a warrant does not necessarily end the matter. Penal Code section 1550.1 requires that a person arrested on a warrant of rendition be taken before a magistrate, informed of his right to counsel, and be given a reasonable time in which to apply for a writ of habeas corpus. Thus, Banks at that time may test the sufficiency of the warrant and the underlying demand, and raise any other objections to extradition permitted by the Constitution and laws. (See generally Witkin, Cal. Criminal Procedure, op. cit. supra, §§ 61-63, pp. 60-62; In re Golden, supra, 65 Cal.App.3d at pp. 793-794, 135 Cal.Rptr. 512.)
Let a peremptory writ of mandate issue ordering the Governor or his authorized agent to issue a warrant for the arrest and [562 P.2d 20] [138 Cal.Rptr. 20] rendition of Dennis James Banks to South Dakota in conformance with the requirements of Penal Code section 1549.2.
PARAS and EVANS, JJ., concur.
Hearing granted; BIRD, C. J., did not participate.
For a criticism of this argument, see Hoague, Extradition between States (1879) 13 American Law Review 181, 238-243; Comment, Interstate Rendition: Executive Practices and the Effects of Discretion, supra, 66 Yale Law Journal at page 99, footnote 16.