Lungren Loses Bid for Treasurer Post : State High Court Rejects Appeal in Unanimous Vote

Rejecting a plea from Gov. George Deukmejian, the California Supreme Court ruled unanimously Thursday that Rep. Daniel E. Lungren may not take office as state treasurer with confirmation by only one house of the Legislature.

The court, with Deukmejian appointees now in the majority, held that a 1976 amendment to the state Constitution requires that nominees to vacant statewide offices gain approval from both the Senate and the Assembly.

Lungren, 41, a Long Beach Republican, had been named by the governor to the vacancy created by the death last August of Jesse M. Unruh, a Democrat.

Lost in the Senate

In the bitter partisan battle that followed in the Democratic-controlled Legislature, Lungren won confirmation in the Assembly but lost in the Senate. Lungren took the issue to the court, contending along with Deukmejian that approval by one house was sufficient. The justices acted with unusual speed in the case, rendering a decision only nine days after hearing arguments in what was viewed as the most important test to date of their political independence and neutrality.

Five of the seven justices were appointed by Deukmejian--three of the five after a tumultuous election campaign in 1986 that resulted in the defeat of Chief Justice Rose Elizabeth Bird and two other court members. The two other current justices were named by Democratic governors.

Thursday’s ruling came in a 27-page, unsigned opinion finding that although there is some ambiguity in the language of the amendment, it was clearly intended to require confirmation by both houses. Only if the Legislature fails to vote on a nomination within 90 days could a nominee take office without such approval, the justices said.

“When, as here, one house votes to disapprove a nominee, the nomination is rejected, just as in other matters requiring legislative action,” the court said. “. . . Only this construction is consistent with the voters’ intention in adopting the constitutional provision.”

The court rejected the contention by Lungren and Deukmejian that the amendment provided two alternative ways for a nominee to take office: (1) by confirmation of both houses, or (2) by the failure of both houses to reject the nomination within 90 days.

“To accept Lungren’s position would seriously degrade the power and dignity of one house of the Legislature in the confirmation process,” the justices said. “An express rejection of the nominee by that house would be rendered a nullity.”

As a result of the ruling, the governor now will be required to submit another nomination to the Legislature.

Lungren, currently serving his final term in Congress, issued a statement saying he believed he had a fair opportunity to present his case and would fully respect the court’s decision.

Deukmejian said in a statement that he strongly disagreed with the decision but would accept it and immediately seek a new nominee.

James R. Parrinello of San Francisco, the attorney who represented Lungren before the justices, expressed disappointment with the decision but agreed that it would help refute suggestions that the new court would unfairly favor the governor.

“There was some speculation that the justices were not going to call this case as they saw it,” Parrinello said. “But they did call it exactly as they saw it. . . . We thought it was a close case and that our arguments had merit. We’re disappointed in the decision but we respect it.”

Joseph Remcho, a San Francisco lawyer who represented state Senate Democratic leaders opposing Lungren and Deukmejian, said it was “a fine and important step” for the court to act unanimously in the widely watched case. “It certainly gives the lie to those who would say the court was going to operate in lock-step with the governor,” Remcho said. “This affirms our view that you can get a fair hearing in this court.”

Thursday’s decision marked the third time the court has ruled against the governor in politically significant cases--and could help the new conservative court, led by Chief Justice Malcolm M. Lucas, avoid the kind of criticism that the liberal-dominated Bird court received from its political foes.

Earlier this year, the justices refused to hear an attempt by the Deukmejian Administration to overturn a 1981 ruling establishing a state constitutional right to publicly funded abortions under the Medi-Cal program.

In another case, the court held that the governor exceeded his authority by vetoing part of a non-budget bill that increased benefits to welfare families.

The fact that Thursday’s decision was unanimous also dashed speculation that the court would divide on partisan lines in the Lungren case--the most politically charged dispute it has yet reviewed.

Lucas and Justices Edward A. Panelli, John A. Arguelles, David N. Eagleson and Marcus M. Kaufman all were appointed by Deukmejian. Justice Stanley Mosk was named to the court by Gov. Edmund G. (Pat) Brown and Justice Allen E. Broussard was appointed by Gov. Edmund G. Brown Jr. In argument before the court June 14 in Los Angeles, Kaufman in particular had vigorously questioned lawyers for the Democrats, implying that he was highly skeptical of their contention that the law required confirmation by both houses.

Attorneys said Thursday that they had believed Kaufman was leaning toward a ruling in favor of Lungren and Deukmejian--but that now it appeared the justice had been merely testing his analysis of the case.

The case centered on the proper interpretation of the amendment, whose main aim is to limit the power of the governor in filling vacancies in statewide offices.

The amendment first provides that the nominee take office upon confirmation by a majority of the Senate and of the Assembly. The next sentence, however, says that if the nominee is neither confirmed nor rejected “by both the Senate and the Assembly” within 90 days, the nominee would take office.

After his rejection by the Senate, Lungren brought suit in the state Supreme Court, naming Deukmejian as the ostensible defendant in what amounted to a “friendly” test of the law.

Lawyers for both the nominee and the governor argued that the plain meaning of the second sentence is that the nominee may take office when there is not “unanimity of action”--approval or disapproval--by both houses.

Senate President Pro Tem David A. Roberti (D-Los Angeles) and other Democratic leaders who took the other side in the dispute replied that the second sentence is intended only to permit the nominee to take office if the Legislature simply refuses to act.

The court, analyzing the language of the amendment “as a whole” and the intent of the Legislature and the voters in adopting it, rejected the interpretation of Lungren and Deukmejian.

The first sentence--requiring approval by both houses--represents the main premise of the amendment, while the second sentence must be read narrowly, the court said.

Accepting Lungren’s interpretation would allow a nominee to take office even if one house voted to reject and the other failed to act, the court said.

“It is difficult to conceive of a more distorted interpretation of the straightforward command of the first sentence that the Senate and the Assembly must confirm a nominee,” the justices said.

The court went on to cite ballot pamphlet arguments on the amendment distributed to voters in the 1976 election. While disagreeing over the merits of the amendment itself, both sides interpreted it to mean that nominees need confirmation by both houses, the justices said.

That point was made “at least half a dozen times” in the ballot pamphlet and also was made in the ballot title and analysis by the legislative analyst, the court’s opinion said.

“We do not see how it can be denied that the statements by both proponents and opponents advised the voters that disapproval by either house would result in rejection of the nomination, requiring the governor to submit another nominee to fill the vacancy,” the court said.