Governor Tells His Argument to Seat Lungren

SACRAMENTO — With much fanfare and a jab at Atty. Gen. John K. Van de Kamp, Gov. George Deukmejian Wednesday unveiled his legal argument for seating Rep. Daniel E. Lungren as state treasurer and urged the California Supreme Court to “act swiftly” to resolve the issue.

Deukmejian said he will not swear-in Lungren while there is a legal question about whether he can assume office, because it might damage “the fiscal reputation” of the state.

In fact, in a lengthy legal petition Lungren filed with the Supreme Court in San Francisco Wednesday, it was asserted that the delay in seating a successor to the late Treasurer Jesse M. Unruh has already “caused great uncertainty in the bond investment community . . . imperil(ing) important state programs, the marketability of California’s bond issues and the state’s bond rating.” Further delay would “cause irreparable damage,” it said.

But the contention was disputed by Van de Kamp and acting Treasurer Elizabeth M. Whitney, who has operated the office since Unruh died last August after a lengthy illness. Whitney said Van de Kamp had advised her that since Lungren was not going to try to be sworn into office, there no longer is a legal cloud over her selling bonds.

Therefore, Whitney said, she will soon sell $140 million in prison construction bonds and $175 million in low-income housing bonds that she previously had held off the market because of the Lungren dispute.

Lungren’s petition asked for “a prompt resolution, rather than protracted litigation,” in order to break “a constitutional deadlock of unprecedented dimensions” within state government. Court Press Officer Lynn Holton said the panel always considers requests for expeditious rulings, but she could not predict how long it will be before the case is settled.

Legal Stalemate

Resulting from two months of political warfare between the Republican governor and the Democratic-controlled Legislature, the legal stalemate occurred two weeks ago, when the Senate rejected Deukmejian’s nomination of Lungren and the Assembly approved it.

Deukmejian and Lungren contend that in order for the Legislature to reject the confirmation of a nominee to statewide elective office, both houses must disapprove of him. Van de Kamp and the Legislature’s chief lawyer, Bion Gregory, have issued legal opinions contending that confirmation requires the approval of both houses.

The state constitutional amendment setting up the legislative confirmation process was approved by voters in 1976 but never tested until now. The amendment states that a nominee “shall take office upon confirmation by a majority of the membership of the Senate and a majority of the Assembly. . . .” All sides agree this sentence means that two-house approval is required for confirmation.

But there is a second sentence that Deukmejian and Lungren argue provides for another method of confirmation. Van de Kamp and the legislative attorney, on the other hand, contend that the sentence merely was added to keep the Legislature from sitting on its hands and defeating a nominee by refusing to act within a 90-day deadline. That sentence reads: “In the event the nominee is neither confirmed nor refused confirmation by both the Senate and the Assembly within 90 days . . . the nominee shall take office. . . . “

Deukmejian asserted, in a lengthy statement he read before television cameras and reporters, that “the language is as clear and as plain as it can be.”

No Surprises

The governor previously had outlined his legal arguments for seating Lungren, so there were no surprises contained in the details of the court petition

Later, Senate Judiciary Committee Chairman Bill Lockyer (D-Hayward), who authored the constitutional amendment, said Deukmejian’s legal reasoning was “skimpy, illogical and unsupportable.” The governor, Lockyer said, had “purposely misconstrued” the language of the amendment to suit his own political purposes.

Lockyer said “there was no question” that the Legislature’s intent was to require that a nominee be confirmed by both houses.

However, in Lungren’s court petition, the Long Beach Republican denounced the “self-serving memories of certain legislators” and specifically accused Lockyer of having “selectively forgotten the history of his legislation.”

Deukmejian, who was a member of the Senate in 1976 but did not vote on the proposed constitutional amendment, also picked up on the anti-Lockyer theme during his press conference, declaring, “There are some people who tend to like to rewrite history.”

But both the governor and Lungren’s petition reserved their harshest words for Democrat Van de Kamp.

Preliminary Reading

The governor referred to the fact that before the attorney general issued his opinion last October, Richard Martland, the chief assistant who actually wrote it, told reporters that his preliminary reading of the constitutional amendment led him to think that one legislative house could not block a confirmation.

Deukmejian said, “One of the most disconcerting aspects of this issue is the fact that the attorney general’s office initially agreed with our interpretation of the state Constitution. But after heavy lobbying by Democrats in the Legislature, the attorney general reversed his office. . . .”

The court petition criticized the attorney general’s opinion at length, declaring it was “manifestly flawed” and could not “stand close scrutiny.”

Van de Kamp had no immediate comment but called a press conference for today to answer the charges.

Martland, however, summoned reporters to declare that “I am not a wimp” and to dispute the charge that Democratic lobbying changed his opinion. He called Deukmejian’s accusation of flip-flopping “irrelevant and silly.”

“I’m not sure the Supreme Court would care one whit what I said in August when there is a formal written opinion (to the contrary),” he added.

Telephone Calls

Martland acknowledged, however, that he did change his mind after receiving telephone calls from roughly a dozen “people I respect” who took issue with his original statements to reporters. The callers, he said, included Joe Remcho, a San Francisco attorney who has become a legal adviser to Democratic leaders on the Lungren matter.

Remcho, in an interview Wednesday, characterized Deukmejian’s legal strategy as “bizarre,” adding, “I think he’s very far out on a limb.”

Deukmejian’s decision to spell out his legal case at a full-scale Capitol press conference, coupled with earlier making his arguments the subject of a Saturday radio address, prompted some reporters to question whether he was trying to publicly pressure the Supreme Court, which is dominated by his appointees. Deukmejian denied it, asserting that he was only providing the news media with information.

But Senate Democratic Floor Leader Barry Keene of Benicia, the Legislature’s most vocal critic of Lungren, charged at a press conference that the governor, having failed to win the confirmation battle in the Legislature, “now appears to be attempting to bully the courts--the last remaining branch of government standing between him and this particular goal.”