CALIFORNIA SCHOOL EMPLOYEES ASSOCIATION v. MARIN COMMUNITY COLLEGE DISTRICT (1993)

In March of 1991 following the conclusion of the Gulf War, President Bush issued a proclamation whose operative language was this:  “NOW, THEREFORE, I, GEORGE BUSH, President of the United States of America, do hereby proclaim April 5–7, 1991, as National Days of Thanksgiving.   I ask that Americans gather in homes and places of worship to give thanks to Almighty God for the liberation of Kuwait, for the blessings of peace and liberty, for our troops, our families, and our Nation.   In addition, I direct that the flag of the United States be flown on all government buildings, I urge all Americans to display the flag, and I ask that bells across the country be set ringing at 3:00 p.m. (eastern daylight savings time) on April 7, 1991, in celebration of the liberation of Kuwait and the end of hostilities in the Persian Gulf.”   (Pres.Proc. No. 6257, 56 Fed.Reg. 10353 (Mar. 7, 1991).)

California School Employees Association (CSEA) asked the Governing Board of the Marin Community College District (Board) to recognize the three days as paid holidays for the classified employees represented by CSEA.   After the Board refused, CSEA successfully petitioned for a writ of mandate compelling the Board to recognize the days designated in the President's proclamation as paid holidays within the meaning of Education Code section 88203 ¹ and to compensate classified employees accordingly.   The Board's appeal from the judgment ordering issuance of the peremptory writ brings the issue before us.

REVIEW

I

Section 88203 directs that classified employees of a community college “shall be entitled to the following paid holidays ․ every day appointed by the President, or the Governor of this state, as provided for in subdivisions (b) and (c) of Section 79020 for a public fast, thanksgiving, or holiday․”  Section 79020 deals with specified categories of days on which “community colleges shall continue in session or close.”   Subdivision (b) deals with Martin Luther King, Jr., Day.   Subdivision (c) is concerned with days appointed by the Governor “for a public fast, thanksgiving, or holiday.”   But it is subdivision (d ) which provides that “community colleges shall close on every day appointed by the President as a public fast, thanksgiving, or holiday.”

Concerned about this discrepancy, we requested supplemental briefing on the issue of how sections 88203 and 79020 can be read as requiring the days covered by the President's proclamation be treated as paid holidays.   Invoking the principle that “where a statute adopts by specific reference the provisions of another statute ․ such provisions are incorporated in the form in which they exist at the time of the reference and not as subsequently modified” (Palermo v. Stockton Theatres, Inc. (1948) 32 Cal.2d 53, 58–59, 195 P.2d 1), CSEA points out that when the two statutes were enacted in the massive 1976 reorganization of the Education Code, subdivision (c) of section 79020 did deal with days of thanksgiving proclaimed by the President.  (See Stats.1976, ch. 1010, § 2, pp. 4097–4098, 4438.)   It appears that the original version of subdivision (c) is something of a statutory fly preserved in the amber of section 88203.   For this reason, and with the Board's agreement, the merits of the controversy presented before the trial court will now be addressed.

II

The Board makes a number of arguments in support of its contention that the President's proclamation did not “appoint” thanksgiving days within the meaning of section 88203.   Initially, the Board asserts that the trial court misread Laubisch v. Roberdo (1954) 43 Cal.2d 702, 277 P.2d 9 as holding that a presidential proclamation is equivalent to appointing a holiday (which section 88203 puts on the same basis as a day of thanksgiving).   The Board submits that, in effect, presidential proclamations have become so common that they cannot be taken at face value.   The Board proposes to cure this problem by requiring that something more is needed to constitute the “appointing” of a compensated thanksgiving day for purposes of section 88203;  it suggests an executive order such as is required by federal law to “appoint” a paid holiday for federal employees.   The Board seems most apprehensive that without such a limitation, “Presidents issue so many proclamations declaring days of thanksgiving that ․ classified employees would almost never have to report to work.”

 All of the Board's arguments involve what section 88203 means when it speaks of “appointing” holidays, days of fasting, and thanksgiving days.   Because there is no statutory definition of this term, we treat it as having its usual meaning in ordinary usage.  (Phillips v. Byers (1922) 189 Cal. 665, 671, 209 P. 557;  People v. Silverbrand (1990) 220 Cal.App.3d 1621, 1627, 270 Cal.Rptr. 261.)   The ordinary meaning of appoint is to name or to designate.  (See State v. Zellar (1966) 7 Ohio St.2d 109, 36 O.O.2d 107, 218 N.E.2d 729, 732;  Corbett v. Hospelhorn (1937) 172 Md. 257, 191 A. 691, 696;  Black's Law Dict. (6th ed. 1990) p. 99.)   There is no logical reason why an appointment could not be accomplished by a proclamation, which is merely an announcement.  (See Wood v. Beach (1895) 156 U.S. 548, 550, 15 S.Ct. 410, 411, 39 L.Ed. 528;  People v. Garcia (1939) 37 Cal.App.2d Supp. 753, 763, 98 P.2d 265;  Black's Law Dict., supra, p. 1206.)   Our Supreme Court implicitly thought as much when it repeatedly treated presidential and gubernatorial proclamations as sufficient to “appoint” a holiday.  (Laubisch v. Roberdo, supra, 43 Cal.2d 702 at pp. 709–710, 277 P.2d 9;  Reyburn v. Young (1933) 219 Cal. 536, 537–538, 28 P.2d 353;  see also Lynch v. Harrell (1941) 44 Cal.App.2d 863, 865–867, 113 P.2d 261.)   The Legislature also appears to treat a proclamation as the same thing as the appointment of a holiday:  provisions in different codes have Thanksgiving Day being both proclaimed (§§ 37220, 88203) and appointed (§ 45203;  Gov.Code, § 6700).   Any lingering doubt vanishes before another statute which expressly refers to a “proclamation appointing or declaring [a] special or limited holiday” (Gov.Code, § 6705, emphasis added).

 Thus the President's proclamation was sufficient to “appoint” thanksgiving days within the meaning of sections 88203 and 79020.   It is irrelevant whether federal law requires additional presidential action to make a paid holiday for federal employees;  states have the power to specify what shall be state holidays (see Consolidated Marketing, Inc. v. Busi (La.App.1972) 256 So.2d 695, 697), even if federal action may be used to give effect to the exercise of this power (cf. Mandel v. Hodges (1976) 54 Cal.App.3d 596, 606, 127 Cal.Rptr. 244).   Moreover, and as demonstrated by the preceding paragraph, California has not been particularly concerned with the formalities by which holidays are designated.  (See also Los Angeles City Employees Union v. City of El Monte (1985) 177 Cal.App.3d 615, 620, 220 Cal.Rptr. 411.)   The possible overuse of the presidential power expressly incorporated in sections 88203 and 79020 is a policy argument for withdrawing that incorporation.   Arguments of this nature must be directed to the Legislature;  when aimed at courts they furnish this branch no basis for declining to enforce the clear language of these statutes.

III

 Although the President's proclamation includes religious references, and the request for prayer, it—as implemented by sections 88203 and 79020—does not conflict with federal and state constitutional guarantees respecting an establishment of religion (U.S. Const., Amend. I;  Cal. Const., art. I, § 4).

The Board understandably places considerable reliance on our decision in Mandel v. Hodges, supra, 54 Cal.App.3d 596, 127 Cal.Rptr. 244, in which we held these constitutional provisions were violated by annual executive orders of the Governor closing State offices on Good Friday between the hours of noon and 3 p.m., and granting State employees paid time off for that three-hour period.   Superficial resemblances notwithstanding, the features of similarity are too few to regard Mandel as controlling.   In Mandel we sustained the trial court's finding that “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,” to which we added that “the ‘wholly religious' character of the day is exclusively Christian in origin and practice.”  (Id. at pp. 603, 615, 127 Cal.Rptr. 244.)  Mandel also involved evidence that the closure and released time were done for the purpose of allowing worship.  (Id. at p. 612, 127 Cal.Rptr. 244.)   Most importantly, we concluded (id. at pp. 610–615, 127 Cal.Rptr. 244) that the challenged actions failed to satisfy any of the standards of Lemon v. Kurtzman (1971) 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745, which require the invalidation of a statute or governmental practice only if it (1) is motivated wholly by an impermissible nonsecular purpose, or (2) has a primary effect of advancing religion, or (3) fosters excessive entanglement between government and religion.  (See e.g., Lee v. Weisman (1992) 505 U.S. 577, ––––, [112 S.Ct. 2649, 2654, 120 L.Ed.2d 467];  Bowen v. Kendrick (1988) 487 U.S. 589, 602, 108 S.Ct. 2562, 2570, 101 L.Ed.2d 520.)

By contrast, the days at issue here are completely devoid of any intrinsic ecclesiastical significance.   Their prominence derives solely from the President's proclamation designating them as “National Days of Thanksgiving.”   That status makes them part of a tradition which dates back to the earliest days of the Republic.   The durability of this practice weighs against a constitutional violation.  (See Lynch v. Donnelly (1984) 465 U.S. 668, 673–678, 104 S.Ct. 1355, 1359–1362, 79 L.Ed.2d 604;  Marsh v. Chambers (1983) 463 U.S. 783, 786–792, 103 S.Ct. 3330, 3333–3336, 77 L.Ed.2d 1019;  McGowan v. Maryland (1961) 366 U.S. 420, 431–440, 81 S.Ct. 1101, 1108–1113, 6 L.Ed.2d 393.)   The great majority of these proclamations deal with the November Thanksgiving Day populated by Pilgrims and stuffed poultry, but a distinct subcategory is composed of proclamations couched in religious terms appointing days of thanksgiving at the conclusion of armed conflicts.   The proclamation at issue here takes its place with those marking the end of the War of 1812 (1 J. Richardson, A Compilation of the Messages and Papers of the Presidents, 1789–1897 (1899) 560–561 (March 4, 1815)), the Civil War (13 Stat. 773–774 (Oct. 28, 1865)), the Spanish–American War (30 Stat. 1754 (Oct. 28, 1898)), and World War I (40 Stat. 1888–1889 (Nov. 16, 1918)).   The days designated by the President's proclamation are therefore encompassed within one of California's definitions of a holiday—i.e., “a day set apart ․ to rejoice over some great national or historical event” (Vidal v. Backs (1933)218 Cal. 99, 105, 21 P.2d 952)—which extends to proclamations of this precise nature.  (See Laubisch v. Roberdo, supra, 43 Cal.2d 702, 277 P.2d 9 [V–J Day].)   Although such proclamations may not be so frequent as to have “become part of the fabric of our society” (Marsh v. Chambers, supra, 463 U.S. at p. 792, 103 S.Ct. at p. 3336), the history of their use “is not something to be lightly cast aside.”  (Walz v. Tax Commission (1970) 397 U.S. 664, 678, 90 S.Ct. 1409, 1416, 25 L.Ed.2d 697;  accord, Marsh v. Chambers, supra, 463 U.S. at p. 790, 103 S.Ct. at p. 3335.)

In addition the paid holiday mechanism of sections 88203 and 79020 triggered by the President's proclamation is fully compatible with the Lemon criteria.   First, the designation of the three holidays cannot fairly be viewed as “motivated wholly by religious considerations.”  (Lynch v. Donnelly, supra, 465 U.S. 668 at p. 680, 104 S.Ct. 1355 at p. 1362.  [Emphasis added].)   Obviously the aim was the celebration of a triumph of arms.   Even if other intentions may have existed, this aim was legitimate, secular, and clearly sufficient to satisfy the first of the Lemon factors.  (See id. at p. 681, fn. 6, 104 S.Ct. at p. 1363, fn. 6.)

Second, the holidays did not have a primary effect of advancing religion.   They were granted unconditionally, with no restriction based upon any religious consideration.   No religious observance was compelled.   No affirmance of religious belief was required.   No religious belief was either endorsed or given preference over another.  (See Braunfeld v. Brown (1961) 366 U.S. 599, 603, 605, 81 S.Ct. 1144, 1146, 1147, 6 L.Ed.2d 563;  Zorach v. Clauson (1952) 343 U.S. 306, 311, 72 S.Ct. 679, 682, 96 L.Ed. 954.)   Any benefit to religion was “indirect, remote, and incidental” (Lynch v. Donnelly, supra, 465 U.S. 668 at p. 683, 104 S.Ct. 1355 at p. 1364) to the secular purpose just mentioned.

Lastly, excessive entanglement between government and religion is not presented.   For all intents and purposes, the holiday provisions of sections 88203 and 79020 are self-executing according to plain language which is value-neutral.   The operation of those provisions does not involve any administrative or regulatory contact between Church and State.   No boundary of theological doctrine is crossed.   No inquiry into faith is made.   (See Swaggart Ministries v. Cal. Bd. of Equalization (1990) 493 U.S. 378, 392–397, 110 S.Ct. 688, 697–700, 107 L.Ed.2d 796.)   There is no sound reason to treat these days of thanksgiving as different in kind from the annual Thanksgiving Day, which for generations has been proclaimed with religious terminology and compensated as a paid holiday.  (See Lynch v. Donnelly, supra, 465 U.S. 668 at pp. 675–676, 104 S.Ct. 1355 at pp. 1360–1361.)   Despite the considerable longevity of these practices, the Board has not cited—nor has our independent research discovered—a single decision finding them to constitute an infringement of any state or federal constitution.   This silence reinforces the conclusion that no constitutional violation has been demonstrated here.

IV

With the proper construction of the applicable law established by the trial court, the Board had a ministerial duty to compensate its classified employees in accordance with section 45203 and our decision in California School Employees Assn. v. Oakland Unified School Dist. (1983) 141 Cal.App.3d 624, 190 Cal.Rptr. 464.   Issuance of mandate was appropriate to compel performance of that duty.  (Common Cause v. Board of Supervisors (1989) 49 Cal.3d 432, 442, 261 Cal.Rptr. 574, 777 P.2d 610;  California School Employees Assn. v. Azusa Unified School Dist. (1984) 152 Cal.App.3d 580, 589–590, 199 Cal.Rptr. 635.)

The judgment is affirmed.

FOOTNOTES

1.   All subsequent statutory citations are to this Code unless otherwise indicated.

POCHÉ, Acting Presiding Justice.

PERLEY and REARDON, JJ., concur.