State of South Dakota v. Brown

• Decision Date: 20 March 1978
• Docket Number: S.F. 23579
• Citation: 144 Cal.Rptr. 758,576 P.2d 473,20 Cal.3d 765
• Court: California Supreme Court
• Parties: , 576 P.2d 473 STATE OF SOUTH DAKOTA, Petitioner, v. Edmund G. BROWN, Jr., as Governor, etc., Respondent.

Page 758

144 Cal.Rptr. 758

20 Cal.3d 765, 576 P.2d 473

STATE OF SOUTH DAKOTA, Petitioner, v. Edmund G. BROWN, Jr., as Governor, etc., Respondent.

S.F. 23579.

Supreme Court of California, In Bank.

March 20, 1978.

Gibson, Dunn & Crutcher, Charles S. Battles, Jr., and Thomas E. Holliday, Beverly Hills, for petitioner.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., James T. McNally and Gregory W. Baugher, Deputy Attys. Gen., for respondent.

Robert Nicco, Public Defender, Geoffrey Brown and Elli R. Gump, Deputy Public Defenders, Ephraim Margolin, Nicholas C. Arguimbau, Margaret C. Crosby, Alan L. Schlosser, San Francisco, Fred Okrand, Los Angeles, and Paul N. Halvonik, State Public Defender, San Francisco, as amici curiae on behalf of respondent.

RICHARDSON, Justice.

We examine the nature of the extradition powers and duties of the Governor of California. Is a mandatory obligation to comply with the extradition demand of another state imposed upon him by either the extradition clause of the United States Constitution (art. IV, § 2, cl. 2) or the provisions of California's Uniform Criminal Extradition Act (Pen.Code, § 1548 et seq.)? If so, may the courts of this state compel the Governor to discharge that duty? We will conclude that although the Governor's duty may be characterized as "mandatory," the judicial enforcement thereof is authorized neither by the federal Constitution nor the provisions of California's extradition act, and we will deny the petition of the State of South Dakota for a writ of mandate. (For purposes of clarity, the Uniform Criminal Extradition Act will be referred to herein as the Uniform Act, whereas California's own, slightly different version of the Uniform Act, will be referred to as the Extradition Act.)

On or about February 15, 1976, South Dakota presented an extradition demand to the Governor seeking extradition of Dennis James Banks. The demand alleged that Banks had been convicted of specified felonies in South Dakota and had fled to California while on bail. The Governor has not questioned the sufficiency of the demand nor has he expressly denied the request. Rather, he asserts that he is exercising his prerogative to "investigate" the equities of the case before acting on South Dakota's demand. South Dakota, on the other hand, insists that the Governor's extradition function is mandatory, once the conditions of the Extradition Act are satisfied, and seeks from us a writ of mandate to compel the state's Chief Executive to issue a warrant for Banks' arrest.

We emphasize at this point the very limited nature of our inquiry. We examine only the character of the Governor's extradition power, not the propriety of its exercise. Our sole function is to resolve, under applicable law, the question whether he possesses any discretionary power to refuse a demand for extradition which is in proper form. We express no opinion on the wisdom of his refusal thus far to honor South Dakota's demand under the particular circumstances of the Banks case.

As will appear, the subject of extradition is covered by both constitutional and statutory provisions which we now explore.

1. Federal Constitution

Article IV, section 2, clause 2, of the United States Constitution (hereafter, the Extradition Clause) provides: "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." (Italics added.) Both the United States Supreme Court and this court have interpreted this clause as imposing on the state executive a mandatory duty to extradite upon demand. (Kentucky v. Dennison (1861) 65 U.S. (24 How.) 66 106, 16 L.Ed. 717; Appleyard v. Massachusetts (1906) 203 U.S. 222, 227, 27 S.Ct. 122, 51 L.Ed. 161; In re Russell (1974) 12 Cal.3d 229, 234, 115 Cal.Rptr. 511, 524 P.2d 1295.) Thus, in Dennison, supra, the high court first observed that the word "demand" in the constitutional provision denoted an "absolute right" to obtain extradition, thereby implying a "correlative obligation to deliver, without any reference to the character of the crime charged, or to the policy of the laws of the State to which the fugitive has fled." (65 U.S. at p. 103.) The Dennison court characterized this constitutional duty as "ministerial," not "discretionary." (Id., at p. 106.)

Having so defined a governor's obligation, however, the Supreme Court further emphasized that neither the Extradition Clause nor the federal legislation implementing it contained any procedure whereby a governor's extradition duty might be judicially compelled. (Id., at pp. 107-110.) As Dennison carefully explained, "The performance of this duty . . . is left to depend on the fidelity of the State Executive to the compact entered into with the other States when it adopted the Constitution of the United States, and became a member of the Union . . . . (P) (I)f the Governor . . . refuses to discharge this duty, there is no power delegated to the General Government, either through the Judicial Department or any other department, to use any coercive means to compel him." (Id., at pp. 109-110, italics added.)

Subsequently, in Taylor v. Taintor (1872) 83 U.S. (16 Wall.) 366, 370, 21 L.Ed. 287, the high tribunal reaffirmed Dennison, acknowledging very explicitly that "If (the Governor) refuse (to extradite a fugitive), there is no means of compulsion." (Italics added.)

South Dakota does not challenge the continuing force of these 2 Supreme Court expressions which are more than 100 years old. It is generally accepted that federal courts lack any authority to compel a governor to deliver up a fugitive to a demanding state. Petitioner, however, would confine application of Dennison to the exercise of federal power. Relying on the rule, well established in California, that mandamus will issue to compel performance of a Governor's ministerial duties (e. g., Hollman v. Warren (1948) 32 Cal.2d 351, 354-355, 196 P.2d 562; Jenkins v. Knight (1956) 46 Cal.2d 220, 222-223, 293 P.2d 6), South Dakota argues that a state court may enforce the mandate of the Extradition Clause. In this connection, however, petitioner has neither cited, nor have we found, a single case in the history of the Republic in which any state court has issued mandamus to compel extradition. We may not lightly ignore this fact. The absence of such authority appears to reflect the uniform acceptance of the highest state courts that, following Dennison and Taylor, without any specific implementing legislation, the constitutional duty of the state executive to extradite a fugitive is not judicially enforceable by either federal or state sanction. Indeed, courts from several of our sister states have expressly so held. (See People v. Millspaw (1939) 257 App.Div. 40, 12 N.Y.S.2d 435, 437 (citing Dennison and Taylor ), revd. on other grounds 281 N.Y. 441, 24 N.E.2d 117; Carpenter v. Lord (1918) 88 Or. 128, 171 P. 577, 578; Ex Parte Wallace (1951) 38 Wash.2d 67, 227 P.2d 737, 738.)

The California law on the point was established very early by a case which, although it was decided before both Dennison and Taylor, nonetheless anticipated their results and clearly recognized that in California mandate would not lie to order compliance with the constitutional obligation to extradite. (In re Manchester (1855) 5 Cal. 237.) As we observed in Manchester, "the Courts of this State possess no power to control the Executive discretion, and compel a surrender (of a fugitive) . . . ." (P. 238, italics added.) Even though subsequent cases, cited above, have characterized the Governor's constitutional duty as "mandatory," none of them has suggested that the obligation contained in the federal Constitution is judicially enforceable. No implementing legislation either mandated or authorized any enforcement procedure. The recognition of this fact is not new, but was stressed shortly after California's adoption of the Uniform Act by our esteemed colleague, Justice Mosk, then secretary for Governor Culbert Olson with responsibilities for the conduct of extradition hearings. Writing in the April 1939 issue of the State Bar Journal in reference to the extradition language of the federal Constitution, Justice Mosk noted that "although its provisions are mandatory upon the executive authority of each state, they were not made self-executing." (Mosk, Extradition Procedure in California (1939) 14 State Bar J. 121.) He observed that the varying provisions of state statutes handicapped the administration of criminal justice and ultimately prompted the adoption of the Uniform Act. (Ibid.) As developed more fully below, the author concluded that, by reason of the Dennison decision, the Governor, not the courts, has the "final authority" in extradition matters. (Id., at p. 125.)

From all of the foregoing we conclude that while the federal Constitution imposes upon the Governor a mandatory obligation to extradite a fugitive to a demanding state, the Constitution does not empower the courts, federal or state, to enforce that duty by writ of mandate. No case has so held. Rather, the Constitution leaves the faithful execution of the extradition obligation in the hands of the state executive, trusting, in the words of Dennison, in the Governor's "fidelity" to the federal Constitution.

2. California's Extradition Act

If the United States Constitution creates no judicially enforceable duty to extradite a fugitive to a demanding state, is there any independent basis for such an obligation? South Dakota contends that the provisions of our state Extradition Act impose such a judicially enforceable responsibility. For reasons which we explain below, the Extradition Act, when read as a whole and examined within its historical context, does not...