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A Darker Shade of Gray

By James L. Hirsen, J.D., Ph.D.

Inherent in the system of government conferred upon us by our founding fathers is a fundamentally important idea - no single branch, and no single individual, shall be vested with an inordinate amount of power. To insure that governmental power is exercised responsibly, specific limits are placed on each branch. A good-faith relationship with the electorate must be maintained as the duties and obligations assigned to the office are carried out.

In light of these constructs, what then are the limits of a governor's power? Can a governor of a state rely upon individual discretion and make determinations based upon personal interest, or must power be exercised within the context of some kind of trust imposed by virtue of the public office?

Indeed, the latter is true. With regard specifically to Governor Gray Davis of California, there are job performance boundaries that strictly limit the actions of the chief executive of the state. His job description comes from the Constitution of the State of California. The wording of the document is clear and succinct.

Similar to most states, California's Constitution closely parallels the language and philosophy of the United States Constitution. In Article Five, Section One of the California Constitution, the power of the governor is characterized as the "executive power."

This executive power is described in the same way the executive power of the President of the United States is described. "The Governor shall see that the law is faithfully executed."

The crucial word here is faithfully. To whom must the governor be faithful? His duty is owed to the citizens of California, and his actions must reflect that serious obligation.

The citizens, through a constitutional initiative process, passed a law known as Proposition 187. The ACLU and other private groups filed a lawsuit against the State of California to prohibit the implementation of this law.

The defendant in this case was the State, the people of California. Without the diligent prosecution of the interests of the people of California by the executive branch, the law would surely die.

The duty of the Governor in this scenario was clear. No personal circumspection was warranted. If and when the Governor fails to pursue all judicial actions and remedies available to the State, he has breached his trust.

In this case, Governor Davis went far beyond mere malfeasance. He affirmatively acted to deny the citizens of California their collective day in court. He intentionally derailed the legal process in favor of special interests. Davis did so without any legal grant or authority and acted counter to the will of the people he is compelled to serve. He deprived his constituents of their right to due process through a secret sham mediation, which disallowed any participation from supporters of Proposition 187.

This constitutes more than a typical breach of a campaign promise. It is a definitive assault on the very office that the Governor occupies.

To complicate matters further, actions on the part of the Governor have caused the issues embodied in the original text of Proposition 187 to be transcended. With the introduction of the leader of a foreign nation into the internal affairs of the state, discussion has moved to a much more serious legal and political arena, for the very essence of the sovereignty of the state of California is now at stake.

Gray Davis has marked his advent as governor by exhibiting some extremely disturbing conduct. He has violated his oath of office, abused power and defiled the trust granted to him by the electorate.

Fortunately, the California Constitution contains a provision that the United States Constitution does not. The citizens of this state may remove an elective officer through a recall. If ever there was a time to utilize this astute provision, the time is now.

Copyright © 1999 -
James L. Hirsen, J.D., Ph.D.
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