Clemency – Is There a Deadline for Governor to Act?

The following summary of Clifford Alan Dilbert v. Gavin Newsom is intended to show readers that there is no due process right to clemency or even consideration of one’s application for clemency within any particular time.  We have received many calls over the years asking about this and we always tell them what this case affirms (in 2024).  Callers are often dubious or skeptical of this answer. 

In 2016 and 2017, Mr. Dilbert filed petitions for clemency and / or commutation of his prison sentence with the Governor’s office.

In 2019 and 2021, he filed reapplications with the Governor’s office.

Mr. Dilbert did not receive any communication from the Governor’s office that his clemency petition was received or processed.  However, instructions available online by the Governor’s office state, “[i]n deciding whether to grant a commutation, the Governor’s Office will carefully review each commutation application” and various enumerated factors.

The instructions also state that “[a]pplicants will be notified when the Governor takes action on a commutation application.”

Mr. Dilbert then filed a petition for a writ of mandate in the Sacramento County Superior Court “directing the Governor to adhere to his ministerial duty” to process his clemency petitions and reapplications, “render a decision on those filings” and “inform [Mr. Dilbert] of the decision in a timely manner.”  Mr. Dilbert argued that he had due process rights under the Fourteenth Amendment of the U.S. Constitution and article 1, section 7 of the California Constitution to have his application processed.

The Governor filed a demurrer to the petition, which the trial court sustained without leave to amend.

Mr. Dilbert then filed an appeal of this ruling to the Third Appellate District Court in Sacramento, which affirmed the trial court.

The Third Appellate District explained that a writ of mandate is proper to compel the performance of an act the law specifically directs as a duty resulting from an office, trust or station. California Code of Civil Procedure § 1085.  Such a writ, however, may not issue to control discretion conferred upon a public officer or agency.  

Two basic requirements are “essential to the issuance of a writ: (1) a clear, present and usually ministerial duty on the part of the respondent; and (2) a clear, present and beneficial right in the petitioner to the performance of that duty.” People, ex rel. Younger v. County of El Dorado (1971) 5 Cal. 3d 480, 490-491.  

Here, Section 8 of Article V of the Constitution of the State of California states, “[t]he general authority to grant reprieves, pardons and commutations of sentence is conferred upon the Governor.”  “Commutation is a reduction in punishment; a pardon is the remission of guilt and relief from the legal consequences of the crime; and a reprieve is a temporary suspension of execution of sentence. Penal Code § 4853 (pardon); Way v. Superior Court of San Diego County (1977) 74 Cal. App. 3d 165, 176.  The statutory application procedures for executive clemency are found in Penal Code §§ 4800 to 4813.

The appellate court also noted that Mr. Dilbert “lacked the requisite headings and subheadings and offered very little in the way of developed arguments and citations.”  The court commented that “self-represented parties are . . . held to the same restrictive procedural rules as an attorney.” Nwosu v. Uba (2004) 122 Cal. App. 4th 1229, 1247, noting that “a doctrine generally requiring or permitting exceptional treatment of parties who represent themselves would lead to a quagmire in the trial courts, and would be unfair to the other parties to litigation.” Rappleyea v. Campbell (1994) 8 Cal. 4th 975, 985.

The appellate court then noted that neither section 8 of article V of the California Constitution nor any provision of the Penal Code sections 4800 to 4813 contains an express requirement that the Governor process clemency applications within a specified time frame.  Indeed, section 8 of article V of the California Constitution and Penal Code sections 4800 to 4813 do not require the Governor to issue decisions on clemency applications at all. 

The appellate court then noted that Mr. Dilbert cited no authority that creates an obligation for the Governor to grant discretionary clemency within a certain amount of time and nothing in the language of the instructions commits the Governor’s office to acting on a clemency application withing a specified time frame.  Therefore, Mr. Dilbert’s argument that the Governor must act within an amorphous “reasonable” time lacked merit and the trial court ruling was thus affirmed.