‘Plain Reading’ Isn’t So Plain on Lungren

Gov. George Deukmejian’s nomination of Rep. Daniel E. Lungren to be state treasurer is now on hold, awaiting a court ruling following the Assembly’s confirmation and the Senate’s rejection of the appointment.

An amendment to the California Constitution, proposed by the Legislature and approved by the voters, provides: “The governor shall nominate a person to fill the vacancy (in an elected statewide office) who shall take office upon confirmation by a majority of the membership of the Senate and a majority of the membership of the Assembly. 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 . . . . “

The governor, Lungren and their advisers insist that the Assembly’s confirmation validates the appointment. They base this position on the dictionary and the “plain reading,” or plain meaning of the second sentence. But in the opinion of Atty. Gen. John Van de Kamp and Bion Gregory, the Legislature’s chief legal adviser, the Senate’s rejection negates the appointment. The first sentence, they argue, requires confirmation by both Houses and the purpose of the second sentence, which is to prevent opposition legislators from denying a nominee the office by delaying the vote, is not here involved.

It is this conflict that will be resolved by the courts. Simplistically viewed, the interpretation process may appear to be essentially “definitional,” involving the application of grammar and syntax rules to dictionary definitions. That approach prefers the plain or literal meaning of the law as least subject to unpredictable judicial variation.

But given the inherent ambiguity of language, plain meaning is often illusory. Most words have several meanings or connotations, some remarkably dissimilar. The meaning of a statement is entwined with the total communication of which it is a part and with the reason for its utterance.

An ambiguous law has at least two tenable meanings. Interpretation of such a law necessarily involves a search for the purpose of its enactment and for an accommodation of any apparently competing clauses. The meaning of any portion of the law is determined in the context of the whole law.

The first sentence indisputably authorizes the governor’s nominee to take office upon confirmation by majority in both houses. The second sentence provides an alternative basis for confirmation that is in dispute. The governor and his nominee contend that the alternative validates a nomination that is neither confirmed by both houses nor rejected by both houses within 90 days and therefore validates a nomination that is confirmed by one house and rejected by the other within the specified period.

But what is the purpose of a sentence that carefully provides for two-house confirmation and a second sentence that makes the first one useless? If confirmation by either house is controlling, the two-house confirmation is meaningless and the confirmation process could have been simply described by the drafters in a single clause as follows: “... the governor shall nominate a person to fill the vacancy who shall take office upon confirmation by a majority of the membership of either the Senate or the Assembly . . . .”

The presence of the first sentence and the specification of a 90-day deadline in the second suggest the anti-stalling purpose, as identified by the attorney general and the legislative counsel. Their interpretation of the second sentence effectuates an important governmental policy and reconciles both sentences.

The anti-stalling purpose of the amendment is corroborated by aspects of its legislative history, which consists of events significant to the enactment process. When identifying the underlying purpose of an ambiguous law, courts frequently consider such portions of the legislative history as committee hearings, detailed committee reports and floor debates, if available.

In this case, there apparently is no record of such hearings, reports or debates. But the submission to the voters is also part of the official enactment process. That submission, 12 years before the current dispute, included an official pamphlet containing the text of the proposal along with supporting and opposing arguments by members of the Legislature, arguments analogous to legislative floor debate. In those arguments both sides recognized the requirement of two-house confirmation, the opposition arguing that if the amendment passed, “the governor would be subject to the whims of either the Senate or the Assembly . . . . “

More debatable is the admissibility of recent statements by the author of the amendment, state Sen. Bill Lockyer (D-Hayward), that the amendment originally contained only the first sentence. The second sentence, he noted, was added “purely as a way to say the Legislature doesn’t get to sit on its fanny.”

The California Supreme Court has the last word on the meaning of the California Constitution. A majority of the justices are Deukmejian appointees. But whatever their political predispositions, it is not likely that they will ignore the legislative purpose of the second sentence in favor of an irrational “plain reading” that is far from plain.