Lungren’s Choice for Top Deputy Isn’t Eligible for the Post, Van de Kamp Says

The man that Atty. Gen.-elect Dan Lungren wants to make his top deputy is ineligible to assume that office, according to an opinion issued Wednesday by the current attorney general, John K. Van de Kamp.

Van de Kamp said Sacramento County Superior Court Judge David Stirling, Lungren’s choice to become chief deputy attorney general, is barred from assuming the new post because the state Constitution prevents judges from assuming another public office in the middle of their judicial terms.

“We believe that courts would find that Judge Stirling would be disqualified from public office . . . until at least January, 1993, the date an elected successor will likely be chosen and assumes office,” Van de Kamp wrote.

Despite the opinion, Lungren has no intention of changing his plans to name Stirling, a sometimes controversial former Republican assemblyman, as his top aide next month, when Lungren assumes his new office.

“The attorney general-elect is convinced this appointment is a constitutional one and that Dave Stirling is qualified for the position based upon our interpretation of the (constitutional) provision,” said Lungren press secretary Dave Puglia.

Chief Assistant Atty. Gen. Richard Martland said Lungren was free to ignore the legal advice from his predecessor in office. “The issue here is mainly of risk (of a successful legal challenge),” said Martland, who cited the case of a former state Supreme Court justice who resigned his post to teach at the University of California. Although the attorney general at the time said the move was unconstitutional, the justice went ahead and was never challenged.

The California Constitution specifically bars judges from “public employment or public office other than judicial employment” during their term.

That provision was intended to remove a sitting judge from being influenced by a potential public job, Van de Kamp said.

Stirling was appointed to the bench in late 1989 by Gov. George Deukmejian. He was unopposed for election to the post in his own right this year and was scheduled to begin a full six-year term in January. However, Stirling said he would resign from the bench this month to take his new position.

Citing a series of court rulings, Van de Kamp said an appointed judge’s “term” continues at least until an elected judge is sworn into office to replace him. And, if Stirling does step down, that can’t happen until January, 1993.