When Law Is in Doubt, Bring Out the Canons : On the Merits, Lungren Case Is a Close Call, but Deukmejian May Have a Winning Hand

The controversy over Gov. George Deukmejian’s appointment of Rep. Daniel E. Lungren to serve as state treasurer now moves to the courts. The Democrats in the Legislature contend that a 1976 initiative amending the California Constitution requires confirmation by both the Senate and the Assembly. Although Lungren was confirmed by the Assembly, the Senate rejected his appointment. The Republican governor contends that the initiative requires rejection by both the Senate and the Assembly within 90 days of appointment in order to prevent a gubernatorial appointee from taking office.

Courts often cite a hoary collection of “canons” in resolving disputes over the meaning of statutes. These canons are frequently contradictory, setting up an endless process of thrust and parry. Although lawyers for both sides always find plenty of “canons” to press into service, the following six appear to have the greatest relevance.

First, the “plain meaning” rule requires a court to give effect to clear and unambiguous language. There is said to be no need to search the history of an enactment if intent is apparent from the face of the language used. Thus the first place a court should look is in a good dictionary.

The language of this initiative, however, is far from “plain.” The two key sentences appear to contradict each other. The first sentence provides that the governor’s nominee “shall take office upon confirmation by a majority of the membership of the Senate and a majority of the membership of the Assembly.” The second sentence provides that the nominee shall take office “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 Democrats contend that the second sentence was intended to apply only if the Legislature failed to act. In the Lungren case both houses did act within 90 days, with contrary results. The governor counters that the two sentences simply present two alternatives. If both houses confirm within 90 days, the appointee takes office immediately. If both houses fail to reject the nominee, he takes office at the end of the 90-day period.

That leads us to the second relevant rule: Effect must be given, if possible, to every word, clause and sentence of a statute. This rule is based on the doubtful premise that legislators don’t use superfluous words.

The rule strongly supports the governor’s position. If rejection by one house was sufficient to refuse confirmation, then the words “by both the Senate and the Assembly” would be unnecessary in the second sentence.

A third rule, however, cautions that a literal reading should not be given to a provision if it leads to “absurd results.” This rule is based on the even more doubtful premise that legislators are never absurd. The Democrats suggest that the governor’s position would obliterate the requirement of concurrence of both houses. Once either house confirmed, the nominee would take office regardless of what the other house did. It wouldn’t make any difference whether they confirmed him, rejected him or did nothing--he would still take office after 90 days. That’s only absurd, however, if one assumes that concurrent confirmation is an absolute requirement. The governor’s position makes perfectly good sense if concurrent confirmation is a requirement only to take office within 90 days.

Should we seek some enlightenment from the author of this confusing language? A fourth rule was propounded by the Earl of Halsburg in the English House of Lords in 1902: “I believe the worst person to construe (a statute) is the person who is responsible for its drafting.”

This is based on the sound premise that the one who created the mess in the first place is hardly a good candidate to clean it up.

This initiative emanated from Assemblyman Bill Lockyer (D-Hayward), who has since moved up to the Senate, graduated from law school and said that 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.

While California courts have been quite liberal in admitting statements of the drafter’s intent, recent decisions suggest that they are irrelevant unless they were actually considered by the Legislature before enactment.

Since this measure was adopted as an initiative, can statements made to voters be considered? A fifth rule, frequently invoked in California, suggests that a resort to ballot pamphlets is a good source to clarify ambiguities in initiative measures. Here the Democrats will find persuasive evidence to support their argument. The proponents argue that the proposition was “modeled after the 25th Amendment of the U.S. Constitution,” which clearly requires confirmation of both Houses of Congress to fill a vacancy in the office of vice president by a presidential appointee. The opponents argued that the proposition subjected the governor to the whims of either the Senate or the Assembly, requiring repeated nominations if both houses could not reach agreement. Thus both contemplated that concurrent confirmation would be an absolute requirement to fill a vacancy.

On balance, it’s a close question. If the courts stick to the actual language inartfully used, the governor should get the nod. If they look to the history of the measure to discover its intent, the Democrats should prevail. Ultimately an unpublished sixth rule of statutory construction could be the most influential of all: “When push comes to shove, judges remember who put them there.” While seldom articulated, this rule may explain more decisions construing legislation than any other. On that basis, the governor wins five to two.