The Governor and California’s Constitution Article V

The purpose of this article is to examine the constitutional provisions related to California’s Governor and some of the published appellate court decisions that provide insights into how these provisions are interpreted by the courts.

Article V focuses on the executive branch of state government and our focus is on the chief executive of the state – the Governor. These constitutional provisions set forth the role and the authority of the Governor and there are a number of appellate court decisions that provide guidance in the interpretation of these specific provisions 

Part I – Constitutional Provisions

Article V of the California Constitution deals with the executive branch of government – not only the Governor, but also other constitutional officers. Here are some interesting provisions related to the executive branch found in the state constitution (along with the relevant section):

The executive power of the state is vested in the Governor and he or she must see that the law is faithfully executed.

The Governor and the other constitutional officers are elected every four years at the same time and place as Assembly Members. The constitutional officers take their office on the Monday after January 1 following their election, for those elected in the November general election.

Both the Governor and Lt. Governor, in order to hold office, must have been a U.S. citizen and resident of California for the 5 years preceding their election and are limited to 2 terms.

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• The Governor and California’s Constitution Article V
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Just like the U.S. President, the Governor must report to the Legislature each year on the condition of the state. This is called the “State of the State” address. The Governor may, but is not required to, make recommendations to the Legislature at that time.

If there is a vacancy in any constitutional office, the Governor must nominate a person to fill that vacancy. The nominee can only take office upon being confirmed by majority vote of the Senate and Assembly. If the nominee is neither confirmed nor refused confirmation by both houses within 90 days, then he or she takes office as if there had been a confirmation vote.

The Governor has the authority to assign and reorganize executive officers, agencies and their employees. This authority is set forth in statute and they are called GRPs – Governor’s Reorganization Plans. They take effect unless the Legislature rejects the GRP. However, this authority does not extend to the Legislature or the other constitutional officers (i.e., the Governor cannot reorganize their offices and employees).

The Governor is the state militia’s commander in chief and he or she has the authority to use the militia to execute the laws.

The Governor has the authority to grant reprieves, pardons and commutations after an individual’s sentence. But this power does not extend to a case of impeachment. If this power is used, the Governor has to report it to the Legislature in each instance and the report must contain the pertinent facts and reasons that he or she used to grant the reprieve, pardon or commutation. In the case of an individual who has two or more felony convictions, the Governor can only grant a pardon or commutation if a majority of the state Supreme Court agrees with his or her decision. You might have read of several instances in late 2018, for example, where the Governor petitioned the Supreme Court to review several pardon requests. And, for the first time, several were rejected.

The Governor also has the authority (limited to 30 days) to review grants of parole for those convicted of murder, but his or her review to affirm, modify or reverse the parole decision must be limited to the same factors which the parole authority considered. Here, too, the Governor’s decision must be reported to the Legislature.

The Lt. Governor is the President of the Senate, but he or she only has the power to cast a vote when there is a tie of 20-20 in the 40-member Senate. This is why the Senate President pro tempore is in charge of the day-to-day operations of the State Senate.

Although they are elected separately (i.e., not on a joint ticket like the U.S. President and Vice President), the Lt. Governor becomes the Governor when a vacancy occurs. Nonetheless, the Lt. Governor also becomes Acting Governor whenever the Governor is out-of-state, has a temporary disability or during impeachment proceedings. By statute, when the Governor and Lt. Governor are absent from the state, then the Senate President pro tempore becomes Acting Governor.

Part II – Selected Court Decisions

There have been numerous state court decisions over the past one hundred years interpreting key provisions of Article V. The following cases highlight some of the key decisions interpreting these constitutional provisions.

Legislative Versus Executive Work

While engaged in considering bills which have passed both houses of the Legislature and are before him for approval or disapproval, the Governor acts in a legislative and not an executive capacity. The powers of the Governor, as a part of the legislative department, are specifically enumerated in the Constitution.

Authority Over State Employment

Under the California Constitution, it is the Legislature, rather than the Governor, that generally possesses the ultimate authority to establish or revise the terms and conditions of state employment through legislative enactments, and any authority that the Governor or an executive branch entity, such as the Department of Personnel Administration, is entitled to exercise in this area emanates from the Legislature’s delegation of a portion of its legislative authority to such executive officials or entities through statutory enactments.

Divided Executive Authority

In contrast to the federal constitution, there is nothing in the California Constitution, including separation of powers provisions, that grants the Governor or any other executive official the exclusive or paramount authority to appoint all executive officials or that prohibits the Legislature from exercising such authority. Unlike the federal constitution, the California Constitution embodies a structure of divided executive power, providing for the statewide election of not only the Governor and the Lt. Governor, but also the Attorney General, State Treasurer, Secretary of State, Controller, and Superintendent of Public Instruction.

Nominees for Constitutional Offices

The constitutional provision authorizing the Governor to nominate persons to fill vacant state offices, and authorizing a nominee to take office in the event that “both” houses of the legislature “neither confirmed nor refused confirmation” within 90 days was merely a prohibition against “pocket vetoes” and the constitution did not mandate that the nominee take office when the two houses reached inconsistent decisions within the 90-day period.

Authority of Lieutenant Governor

Although the Lt. Governor had authority to appoint the presiding justice of the court of appeal while the governor was out of state, the governor on his return had authority to withdraw the appointment until the appointment became effective on confirmation by the commission on judicial appointments. Absence from the state is a “temporary disability” within the meaning of the constitution that the Lt. Governor must act as the governor during the impeachment, absence from the state, etc. of the governor.

Gambling Limitations

The state constitution’s general prohibition on all casino-type gambling statewide prevents the governor from having inherent executive authority to concur in the two-part determination of the Secretary of the Interior to take land into trust for purposes of gaming under the federal Indian Gaming Regulatory Act.

Indian Gaming

The Governor’s concurrence with the Secretary of the Interior’s determination under the Indian Gaming Regulatory Act that land acquired after 1988 is suitable for Indian gaming is not a legislative act and thus does not violate the separation of powers doctrine because California’s participation in IGRA is authorized by the state constitution and a state statute.