New Supreme Court’s Big Test--the Lungren Case

The new state Supreme Court, born in a fierce political controversy over its predecessor, now faces what is widely seen as the first major test of its independence and neutrality.

The justices will hear arguments Tuesday in Los Angeles in a case that will determine whether Gov. George Deukmejian’s nominee for state treasurer, Rep. Daniel E. Lungren, is entitled to take office.

The legal question is whether Lungren, whose confirmation was approved by the state Assembly but rejected by the Senate, must win approval of one or both houses to assume the post.

But the bitter partisan fight over the nomination has put the dispute in the political spotlight as well, focusing added attention on the court and whether its rulings can be influenced by partisan allegiances.

Deukmejian led the 1986 election attack that ousted Chief Justice Rose Elizabeth Bird and two other members of a liberal-dominated court that the governor said had become improperly politicized.

Now, Deukmejian appointees command a majority of the court, and there is speculation over whether the majority will side with the governor in the Lungren case because Deukmejian put them into office. In a sense, legal experts say, the justices are in a no-win situation.

“This case puts them squarely in a political box, where there will be suggestions of political influence no matter which way it comes out,” said Gerald F. Uelman, dean of the Santa Clara University School of Law.

“If they uphold the governor’s position, they’ll be criticized for making a political decision. And if they reject the governor’s position, there will be those who chalk it up to the justices’ seizing an opportunity to display their independence.”

Thus far, the new, more conservative court has rejected the legal position taken by the Deukmejian Administration in two significant cases.

The justices rejected an attempt by the Administration to overturn a 1981 Bird Court ruling establishing a constitutional right to state-funded abortions under the Medi-Cal program.

In another case, the court ruled that while the governor has authority to veto selected items in the budget, he exceeded his powers in vetoing part of a non-budget bill that would have enabled welfare families to receive benefits sooner.

‘Relatively Nonpolitical’

“This court has showed itself so far to be relatively nonpolitical,” said Stephen R. Barnett, a UC Berkeley law professor. “This court, perhaps as a reaction to the Bird Court, has tried so far to stay above politics. I think they’ll call the Lungren case as they see it, deciding the case on its legal merits.”

While most of the attack on the Bird Court centered on its reluctance to uphold the death penalty, its rulings in two complex legislative reapportionment cases stirred considerable resentment among conservative critics. Whatever the court’s intention, the results of the decisions helped Democrats maintain control of the Legislature for a decade.

In 1982, the court in a 4-3 ruling permitted the use of new legislative boundaries drawn by the Democratic-controlled Legislature in elections that year, even though a Republican-backed referendum challenging the plan was on the ballot and was eventually approved by voters.

Dissenting justices said the majority should have followed a precedent-setting ruling from 10 years before, when the court chose to use existing boundaries to minimize disruption until the dispute was resolved.

After defeat of their plan at the polls, Democratic legislators drew up another set of district lines and again Republicans sought to go to the voters with an alternative. But for the first time in 25 years the justices removed an initiative from the ballot, holding 6 to 1 that redistricting could be done only once a decade.

Critics such as Barnett believe that the court’s handling of the issue tarnished its reputation and contributed to the campaign to unseat the justices in 1986.

“To some people, the reapportionment rulings were a tip-off to the lack of objectivity and impartiality by the Bird Court,” he said. “. . . If the new court were to treat the Lungren case in a political way, it could be its Waterloo.”

5 Deukmejian Appointees

Of the new court’s seven members, five--including Chief Justice Malcolm M. Lucas, Deukmejian’s former law partner--were appointed by the Republican governor. Justice Stanley Mosk was appointed by Democratic Gov. Edmund G. (Pat) Brown and Justice Allen E. Broussard by Gov. Edmund G. Brown Jr.

Lungren’s opponents in the dispute before the court have been careful to stress that they believe the justices will treat the case as any other, whatever its political implications.

“We hope and trust the court will do the right thing . . . and not be swayed by short-term political considerations,” said Robert L. Rusky, a San Francisco lawyer representing a coalition of labor, minority and other groups that opposed Lungren’s nomination and are urging the justices to bar him from office.

“Five or 10 years from now, the tables could be turned politically in a similar dispute,” Rusky said. “We think it’s important that the underlying principle, requiring confirmation by two houses, be established now.”

The Lungren case emerged from the governor’s nomination of the Republican congressman from Long Beach to succeed Jesse Unruh, who died in August. The high-stakes political battle that split the Legislature resulted in a constitutional stalemate that Lungren took to the justices to resolve.

At issue is the proper interpretation of a 1976 amendment to the state Constitution that sought to limit the governor’s powers in filling vacant statewide offices.

Until then, while the governor’s Cabinet appointees required confirmation by the state Senate, his nominees to constitutional offices--such as secretary of state or treasurer--required no legislative approval.

The amendment first provides that the governor’s nominee to fill a vacancy shall take office “upon confirmation by a majority of the membership of the Senate and a majority of the membership of the Assembly.” There is no argument over that provision.

Different Interpretations

The next sentence, however, seems to confuse the matter and--not surprisingly--has been interpreted differently by the Republican governor and his Democratic foes.

That second sentence says: “In the event the nominee is neither confirmed nor refused confirmation by both the Senate and the Assembly within 90 days of 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 and Lungren are urging the court to rule in their favor based on the “plain meaning” of the amendment. They rely heavily on a legal maxim than when the language is clear, courts need look no further in interpreting the law.

Lawyers representing Deukmejian and his nominee contend that the amendment establishes two alternative methods of confirmation: (1) a nominee can take office upon approval by both houses within 90 days; (2) but if both houses do not approve or reject the nominee within 90 days, the nominee also can take office.

The second method, the lawyers say, applies when there has not been “unanimity of action”--approval or disapproval--by both houses within 90 days of the nomination. The term “by both the Senate and the Assembly” means just what it says, and would not be included if rejection by one house were sufficient to bar confirmation, they say.

Attorneys for state Senate President Pro Tem David A. Roberti of Los Angeles, representing Democratic leaders in the suit, counter that the wording of the amendment--viewed along with the intent of the Legislature that enacted it--allows confirmation to be blocked by only one house.

Sen. Bill Lockyer (D-Hayward), who authored the amendment, said in a brief filed with the court that the second sentence was not intended to change the two-house confirmation requirement but instead was aimed to allow a nominee to take office if either house simply refused to act on the nomination.

As further indication of the intent of the amendment, the governor’s foes point to ballot pamphlet arguments to voters in the 1976 election indicating that both sides agreed that the measure called for confirmation by both houses.

Proponents of the amendment said it required that nominees “must be confirmed by a majority of the Senate and the Assembly,” while opponents warned that under the amendment the governor would be subject to “the whims of either the Senate or the Assembly.”

Review Expedited

In view of the importance of the case, the court has expedited its review of the dispute and is expected to issue a ruling by the end of summer.

A decision split along partisan lines could be interpreted as a sign that partisan allegiances will prevail over legal merits when a politically charged case goes before the court.

However, for just that reason, some observers say they would not be surprised if the decision, one way or the other, is unanimous.

“A decision split along the political fault lines would certainly open the suggestion that the justices were motivated politically,” Uelman said. “But a unanimous opinion--particularly one rejecting the governor’s position--would send a very clear message of the court’s independence.”