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

June 24, 1988|PHILIP HAGER | Times Staff Writer

SAN FRANCISCO — 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.

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