Mandel v. Hodges

• Decision Date: 21 January 1976
• Citation: 54 Cal.App.3d 596,127 Cal.Rptr. 244
• Court: California Court of Appeals Court of Appeals
• Parties: , 12 Fair Empl.Prac.Cas. (BNA) 627, 90 A.L.R.3d 728, 11 Empl. Prac. Dec. P 10,891 Shelley MANDEL, Plaintiff and Respondent, v. Frederick B. HODGES, Director of Department of Public Health of the State of California, and Department of Public Health of the State of California, et al., Defendants and Appellants. Civ. 33947.

Page 244

127 Cal.Rptr. 244

54 Cal.App.3d 596, 12 Fair Empl.Prac.Cas. (BNA) 627,

90 A.L.R.3d 728, 11 Empl. Prac. Dec. P 10,891

Shelley MANDEL, Plaintiff and Respondent, v. Frederick B. HODGES, Director of Department of Public Health of the State of California, and Department of Public Health of the State of California, et al., Defendants and Appellants.

Civ. 33947.

Court of Appeal, First District, Division 4, California.

Jan. 21, 1976.

Hearing Denied March 18, 1976.

Evelle J. Younger, Atty. Gen., Elizabeth Palmer, Asst. Atty. Gen., John J. Klee, Jr., Sheridan H. Brown, Deputy Attys. Gen., San Francisco, for defendants and appellant.

Richard M. Kaplan, Crimmins, Kent, Bradley, Burns & Kaplan, Ephraim Margolin, San Francisco, for plaintiff and respondent.

J. Anthony Kline, Public Advocates, Inc., San Francisco, for amicus curiae.

RATTIGAN, Associate Justice.

In her action against appellants for declaratory and injunctive relief, respondent Shelley Mandel took a judgment ('Judgment And Writ Of Mandate') which enjoins the Governor from ordering the closure of State offices on Good Friday between the hours of noon and 3 p.m., and from granting State employees paid time off during the three-hour period; enjoins the Controller from paying the employees for time taken off from work during the period; and awards respondent's counsel $25,000 as attorney's fees in the action, and her costs, payable by the State. ¹ We initially affirmed the judgment, but granted rehearing because of valid questions and arguments raised in appellants' petition therefor. Some of the arguments attributed to them herein were made in the petition.

I. The Trial Court's Pertinent Findings and Conclusions

As mentioned in the judgment (see fn. 1, Ante), and with respect to the constitutional questions presented, the trial court found upon substantial evidence as follows:

'6. Respondents Department of Public Health and State of California ² close their offices between the hours of 12:00 noon and 3:00 P.M. on Good Friday without reduction in pay to State employees.

'. . .ame

'11. The practice of permitting employees of respondent Department of Public Health and State of California to take off work on the aforesaid hours of Good Friday without reduction in pay was carried out in 1972 and for at least fifteen years prior to the filing of Petitioner's action pursuant to order of three successive Governors of this State acting in accordance with purportedly discretionary power granted to them. The record reflects that no change of the Governor's past practice of closing State offices on Good Friday has been undertaken.

'12. An actual controversy exists between Petitioner and Respondents as to her rights under law. Petitioner has sought declaratory relief as to her rights by judgment of this Court, and she has further sought a writ of mandate of this Court directing Respondents to act in accordance with law.

'13. Good Friday is a wholly religious day, of solemn character, and the hours of 12 noon to 3:00 P.M. on said day have a special religious significance which is profoundly rooted in Christian theology, and is an annual event. ³

'14. Yom Kippur is a wholly religious day of solemn character in which a Jew is called upon to spend time in worship, to fast, and to avoid work, and said holiday is an annual event.

'15. Pursuant to the said annual order of Respondent Governor, State offices are closed during the hours of 12 noon to 3:00 P.M. on Good Friday and employees of Respondent State of California are paid for said period of time; there is no similar practice as to Yom Kippur or other holidays of faiths other than Christian.'

From these findings, none of which is disputed, the trial court drew the following 'Conclusions of Law':

'1. Respondents Department of Public Health and State of California have granted their employees time off from work annually for many years on Good Friday between the hours of 12 noon and 3:00 P.M. without reduction in pay, pursuant to executive order of Respondent Governor acting under the provisions of Government Code Sections 6700 and 18025.

'2. Respondents have failed and refused to grant the same treatment to Petitioner and others similarly situated with regard to Yom Kippur and other religious holidays of religions other than the Christian religion.

'3. The said discretionary power exercised by the Governor in said manner is purportedly pursuant to a delegation of power granted by the State Legislature, but the said Legislature does not itself possess the authority to prefer one religion over another or (to) establish a religion, and therefore cannot confer upon Respondent Governor the power to do so.

'4. Paying of State employees for taking off from work on Good Friday, pursuant to said executive order, violates the First Amendment of the United States Constitution because the State, by reason of the Fourteenth Amendment to said Constitution, is prohibited from making any law respecting the establishment of religion; said action further violates Article I, Section 4 of the California Constitution, in that it constitutes discrimination and preference of one religion over others.

'. . ., i

'11. The holiday effect of the days specified in Government Code Section 6700 is not reached, but rather, this decision relates to the practice of granting State employees time off with pay on Good Friday pursuant to the discretionary power granted to the Governor. There also remains open the question of the effect of the judgment rendered herein on Code of Civil Procedure § 134 relating to the suspension of judicial business on State holidays, including the Good Friday hours of 12 noon to 3:00 P.M.' ⁴

II. The Practices Enjoined By The Judgment

Before we address the constitutional questions presented, we find it necessary to define their reach by analyzing the practices which the trial court described in its findings and conclusions and enjoined in the judgment. It is clear from the record, first, that the practice of the Controller in paying State employees for time taken off from work during the three-hour period of Good Friday, which practice is enjoined in paragraph 2 of the judgment (see fn. 1, Ante), is ancillary to the execution of the Governor's order, closing State offices during the period, which is enjoined in paragraph 1. (See Ibid.) The validity of the full range of government action challenged by respondent, and enjoined by the judgment upon constitutional grounds, is therefore dependent upon the validity of the Governor's order.

Although the record frequently refers to the order as a 'proclamation' by the Governor, declaring a 'holiday' during the Good Friday period, it may not literally read in such ceremonial terms. In recent years, it has been issued by 'The Governor's Office' in the form of a brief letter which was circulated among designated levels of State government, directed only that State offices would be 'closed' during the three-hour period, and made no mention of a 'holiday.' ⁵ These facts and their effect are to be assessed in accordance with the complicated--and disorganized--statutory context, relative to 'holidays,' in which they have occurred. The pertinent statutes are quoted in the margin. ⁶

The provisions of section 6700 designating certain days as 'holidays in this state' do not 'have any operative effect'; they are 'passive in nature--dependent upon other legislative enactments for any legal significance.' (33 Ops.Cal.Atty.Gen. (1959) 37, 38; 57 Ops.Cal.Atty.Gen. (1974) 641, 642.) Section 6703 thus imparts some 'legal significance' to two provisions of section 6700 by expressly requiring that all offices of the State are to be closed on one of the designated days ('Admission Day'), but that only some of them shall be closed on another ('Veterans Day'). (See § 6700, subds. (h) and (j).) Section 11020 produces the same effect by indicating that all of them shall be closed on 'legal holidays,' a term which may be construed to include both the three-hour period of Good Friday declared to be among the 'holidays in this state' in subdivision (l) of section 6700 and any day 'appointed by the . . . Governor for a public fast, thanksgiving, or holiday' pursuant to subdivision (n) thereof. (See Vidal v. Backs (1933) 218 Cal. 99, 104--105, 21 P.2d 952; Laubisch v. Roberdo (1954) 43 Cal.2d 702, 709--710, 277 P.2d 9; 40 C.J.S. Holidays § 1, p. 410.)

However, the statutes designating 'holidays in this state' as such (§ 6700), or days upon which State offices shall be 'open' (§ 11020) or 'closed' (§ 6703), do not specify the days upon which State employees are entitled to time off with pay. These days are listed in section 18025, where the Legislature has (1) designated the 'holidays' to which State 'employees shall be entitled' and (2) provided in effect that they shall be paid for time taken off from work on those days. (See the last two sentences of section 18025 as quoted in fn. 6, Ante.) Of significance in the present case is the fact that section 18025 reiterates the catalog of 'holidays in this state' which appears in section 6700, but with the conspicuous Exception of 'Good Friday from 12 noon until 3 p.m.' which is designated as one of those 'holidays' in subdivision (l).

The only link among these disparate provisions is the Governor's statutory power to declare a given day 'appointed . . . for a public . . . holiday,' with which the Legislature has vested him in section 6700, subdivision (n), and in section 18025 alike. ⁷ When he exercises this power as to a particular day, his action--depending upon its terms--may make the day a 'holiday in the state' pursuant to section 6700, subdivision (n), or a 'holiday' to which State 'employees shall be entitled' to paid time off under section 18025, or a 'legal holiday' upon which section 11020 permits the closure of State offices, or all three of these things.

In the present case, each of the annual orders of the...