You might have noticed there was no mail delivery back on Thursday, Jan. 9. That was because President Biden had declared it a national day of mourning for former President Jimmy Carter, who died this past December 29. In addition, flags are at half-staff for 30 days. Similar steps were taken in 2018 following the death of former Pres. George H. W. Bush, and in 2006 for former Pres. Gerald Ford.
Apart from the lack of mail delivery and closing of post offices, however, it was not a day like most other federal holidays. Banks were open, for example, but the stock market was closed.
At the state level, it was equally uneven. State offices, including the courts, were open, as were the City of Ukiah and the County of Mendocino. But Mendocino College was closed.
Why this patchwork of open and closed government offices? Well, it goes back to something the late Pres. Bush did in early 1991, at the high point of his administration,.
That spring, U.S. and allied armies overwhelmed the military forces of Iraq in response to Iraq’s invasion of Kuwait in 1990. Beginning in mid-January, under the name Operation Desert Storm, coalition forces defeated the Iraqi Army in just six weeks.
On March 7, President Bush (perhaps a little too giddy about the quick results) issued a proclamation declaring “National Days of Thanksgiving, April 5-7, 1991.” It called upon Americans to “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.” It also urged Americans to display the flag and to ring bells across the nation at 3 p.m. on April 7.
Normally the President has no authority to order a holiday for state or local employees, but the California Legislature had created some fertile soil for mischief. In addition to declaring that certain days, such as New Year’s, Labor Day, and Christmas were holidays for public employees, several statutes in both the Government Code and Education Code provide that public employees are also entitled to a holiday on any day “appointed by the President or the Governor for a public fast, thanksgiving or holiday.” Similar language appears in many local ordinances or policies, which track state law.
Many public entities read this language and foolishly concluded that because it said public employees got a day off whenever the President appointed a day of thanksgiving, it meant, um, that their employees got a day off whenever the president appointed a day of thanksgiving. (Actually, three days off, which was the controversial part.)
These folks were dumb enough to read the law literally? How long has this been going on?
Well, one entity that didn’t was Marin Community College, which refused to give its secretaries, janitors, cafeteria workers, and the like that time off. The union that represented them sued, and initially won before the Marin Superior Court. So the College appealed. It lost in the court of appeal, too.
But because this was the Marin Community College (which apparently has money to burn) they again (using outside attorneys) appealed to the California Supreme Court. That court agreed to hear the case, and in 1994 — three years after the bells rung on April 7 had gone silent — the court issued a very odd 5-2 decision. The court concluded that you couldn’t read the laws giving public employees those “days of thanksgiving” literally. Instead, for those statutes to apply, it must be shown that the President’s proclamation “contemplated a national holiday” and in addition, the “language and tone of the proclamation must demonstrate the President’s intent to designate a national holiday.”
Justice Joyce Kennard wrote a sharp dissent, ridiculing her colleagues for rejecting a “straightforward application of an unambiguous statute” written “in language that could hardly be clearer.” She added, a little sarcastically, that “only a lawyer would doubt that President Bush appointed days of thanksgiving” within the meaning of the statute at issue.
Although none of the statutes refer to a day of “public mourning,” it logically falls under the same reasoning the court used to reject a day of “public fast, thanksgiving or holiday.” By the way — when was the last time you remember the president or governor declaring a day of “public fast”?
Well, anyway, one has to wonder just how the Legislature could have re-written the statute to ensure that it would be read literally. Would it have had to say “every day appointed by the President . . . for a public fast, thanksgiving, or holiday — and we really mean it”?
Would that convince even a lawyer?
Frank Zotter, Jr. is a Ukiah attorney.
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