Lungren Issue Hinges on Capitol Word Game

Before the Senate voted last week to reject the nomination of Rep. Daniel E. Lungren to be state treasurer, the Deukmejian Administration was so confident of victory that the governor’s legal advisers made no contingency plans to deal with defeat.

Now that the Administration is gearing up for a legal battle to save Lungren’s appointment, aides to Gov. George Deukmejian are exuding that same air of confidence--saying they have no fallback position and have “ruled out” consideration of other candidates for the job.

Discussing the Administration’s legal strategy for the first time, Michael Frost, Deukmejian’s chief of staff, told The Times that the governor will rely on a “plain reading” of the 1976 state constitutional amendment that sets out criteria for confirmation--even though his interpretation contradicts formal opinions written by Atty. Gen. John K. Van de Kamp and Bion Gregory, the Legislature’s chief lawyer.

“Our reading is that it takes both houses of the Legislature to block (Lungren), not just one,” said Frost. “We believe it’s clearer the way we are reading it.”

The Administration is so certain of its position, said Frost, that “we ruled out two things: First, under no circumstances would we not go forward (with a court challenge). Nor will the governor appoint someone else (until the courts decide the issue).”

Van de Kamp and Gregory contend that the language of the amendment, when considered in the context of the Legislature’s intentions at the time it drafted the measure, provides strong evidence that rejection by the Senate alone is sufficient to deny Lungren confirmation, despite the Assembly’s vote to confirm him.

That view was generally supported in interviews with various legal experts, who--while conceding that the courts ultimately could side with Deukmejian--argued that it would take more than a “superficial” reading of the statute to prove the governor’s case.

Leonard G. Ratner, professor emeritus of law at USC, called the Administration’s interpretation “the kind of thing that a first-year law student might think of.”

“You cannot solve a problem of legal interpretation by looking in the dictionary,” Ratner said. “When you are trying to interpret a provision and it’s ambiguous, you search for the purpose of the ambiguous clause and the underlying social policy and what it was trying to accomplish.”

But another legal scholar gives the edge to Deukmejian’s interpretation.

“In terms of the dictionary, I’d say there is a slight preference for the conclusion that Lungren is entitled to the office,” said Charles Kelso, who teaches constitutional law at McGeorge Law School in Sacramento.

The Administration had been expected to announce its course of action early this week. But Frost said officials were so unprepared for the Senate’s rejection of Lungren that they are only now beginning to research the best method of bringing their case to the state Supreme Court.

“We did not have an alternative strategy so now we’re trying to develop that,” Frost said.

Lungren, according to Frost, is consulting with at least three private law firms and is considering setting up a private legal foundation to raise money for his defense.

In coming up with its “plain reading” theory, Deukmejian, a lawyer and former attorney general, is relying largely on advice from Vance Raye, his chief lawyer. In recent months, however, the governor’s office has not chalked up an impressive legal track record.

Deukmejian lost lower court decisions that blocked proposed cuts in the Medi-Cal and Cal/OSHA worker safety programs and he suffered a setback in a welfare case that resulted in new curbs on his authority to veto language in the state budget.

In another case in April, a superior court judge called the Administration’s interpretation of Proposition 65, the anti-toxics initiative, “strained and tortured” and ordered the governor to add 201 chemicals to the state list of 29 substances that are known to cause cancer or birth defects. All but the welfare case have been appealed.

The dispute over Lungren’s appointment centers on the wording of the voter-approved state constitutional amendment that established the procedure for confirming appointees to statewide offices.

The amendment states that a nominee “shall take office upon confirmation by a majority of the membership of the Senate and a majority of the membership of the Assembly. . . .” All sides agree this sentence requires two-house approval for confirmation.

The argument is over the amendment’s next sentence, which states that “in the event the nominee is neither confirmed nor refused confirmation by both the Senate and the Assembly within 90 days of the submission of the nomination, the nominee shall take office as if he or she had been confirmed by a majority of the Senate and Assembly.”

In their written opinions released before Lungren was appointed, Van de Kamp and Gregory argue that this sentence was inserted into the law for one reason only--to prevent the Legislature from defeating a nominee simply by refusing to bring the appointment to a vote.

In such an event, the nominee would automatically take office.

Both Houses Acted

However, both houses did act on the Lungren appointment--the Senate voting to reject and the Assembly voting to confirm. That, according to Van de Kamp and Gregory, means Lungren’s nomination is dead.

Deukmejian and Lungren, however, maintain that the purpose of the second sentence was to set up an alternative method for confirming an appointee. Citing the wording of the sentence, they argue that since Lungren was “neither confirmed nor refused confirmation by both the Senate and the Assembly” he may take office.

“What we’re saying is that they both must act in unison,” in order to reject Lungren, Frost said.

Deukmejian, speaking to reporters at a fund-raising dinner Tuesday night, suggested his own interpretation of the law. “I think most people agree that (Lungren) could have been installed and deemed to have been confirmed when neither house takes any action whatever. I think it stands to reason that he can be confirmed when one house has approved,” Deukmejian said, making no mention of the Senate’s vote to reject Lungren.

Kelso of McGeorge Law School said the Administration’s interpretation is defensible so long as the courts consider the literal meaning of the second sentence without giving much weight to the Legislature’s intentions when it passed the amendment and ordered that it be placed on the ballot. Since “judicial conservatives tend to rely on more literal interpretations” of the law, Kelso said, the state Supreme Court, which is dominated by Deukmejian’s conservative appointees, may be predisposed to rule in the governor’s favor.

Looking for Intent

However, USC’s Ratner branded the Administration’s legal interpretation as the “most superficial one,” contending that the courts seldom limit their review to the narrow language of a statute without also considering legislative intent.

The court, Ratner said, “is not going to say, ‘Oh, never mind what the purpose is, we’re going to look it up in Funk and Wagnalls. . . .’ ”

He added, “When you look at (the) legislative history, it looks to me that Lungren better run for Congress again. (Otherwise) Lungren is a real gambler and you don’t want a gambler as treasurer.”

Framers of the amendment maintain there was no dispute over its meaning at the time it was debated and passed by voters. In fact, its supporters and its critics alike made mention of the two-house confirmation requirement in their official ballot arguments.

Then-Assemblyman and now Los Angeles County Supervisor Michael D. Antonovich, a conservative Republican, wrote in his opposing ballot argument that “the governor would be subject to the whims of either the Senate or the Assembly. . . . “ The governor’s advisers argue that Antonovich was never part of the decision-making process, so his interpretation would have little weight.

Drafter’s Viewpoint

However, Sen. Bill Locker (D-Hayward), who drafted the constitutional amendment, said he never would have written the measure in the way he did if his intention was to allow a nominee to take office after being rejected by one house.

The governor’s argument, he said, “is a good example of tortured logic. If they want to find a way to torture the language to read it the way that Deukmejian wants it to be read, that can be done with virtually all words in the English dictionary. But it’s not what anyone intended.”

Lockyer added that the measure originally was written with the first sentence only and that the disputed second sentence was added “purely as a way to say the Legislature doesn’t get to sit on its fanny.”

The governor’s advisers are trying to cast doubt on Lockyer’s statements, saying his intentions may have been far different at the time the measure was written. Besides, one adviser added, “it’s not what the law says and the clear reading of the law takes precedence over what the people who voted for it said.”

Professor Preble Stolz, who teaches state and local government law at UC Berkeley’s Boalt Hall, said “arguments could be made on both sides . . . and the correct answer is whatever answer the Supreme Court comes up with.”