Lungren Case to Be Heard by Justices

SAN FRANCISCO —  The state Supreme Court, moving to resolve a constitutional stalemate, agreed Wednesday to decide whether Gov. George Deukmejian’s nominee for state treasurer, Rep. Daniel E. Lungren, may lawfully take office.

In a brief order, the justices announced that they will step into the bitter partisan dispute and hear Lungren’s claim that he should be permitted to take the job despite gaining confirmation from only one house of the Legislature.

The court exercised its authority to hear the case directly without waiting for the dispute to move through lower courts. Under an expedited schedule, briefs will be filed by early May. Court staff officials and attorneys said it is likely that arguments will be held in early June, setting the stage for a decision by this summer.

The case is the most politically charged dispute to go before the court since appointees of the Republican governor emerged as a majority after the defeat of Chief Justice Rose Elizabeth Bird and two other court members in the November, 1986, election.

Chief Justice Malcolm M. Lucas and Justices Edward A. Panelli, John A. Arguelles, David N. Eagleson and Marcus M. Kaufman all were appointed by Deukmejian. The two others were selected by Democrats: Justice Stanley Mosk was named by former Gov. Edmund G. (Pat) Brown and Justice Allen E. Broussard by former Gov. Edmund G. Brown Jr.

The order issued Wednesday was signed by all members of the court except Panelli, who court aides said was not present at the justices’ weekly closed conference. Only four votes are required to grant review of a case.

Both sides in the dispute welcomed the court’s decision to resolve it and discounted speculation that the governor’s nominee was assured of victory because of the current makeup of the court.

“We have always gotten a fair hearing from the court and we expect a fair hearing in this case, too,” said Joseph Remcho of San Francisco, attorney for Senate President Pro Tem David Roberti, leader of a group of Democrats who contend that Lungren must be denied office under a 1976 constitutional amendment that they say requires confirmation by both the Assembly and Senate.

“We are confident that when the court receives a full analysis of the language in the Constitution and the ballot materials, it, too, will conclude the voters intended both houses are required to confirm,” Remcho said.

Attorney’s Viewpoint

James R. Parrinello of San Francisco, an attorney for Lungren, said that any talk that the new court would improperly lean toward the governor’s position is unfounded and “total speculation.”

Parrinello said he expects Lungren to prevail only “because we have the better argument.”

Deukmejian, in a statement issued in Sacramento, also welcomed the action, saying it would enable the issue “to be resolved expeditiously and with finality by the state’s highest court.”

The legal battle over Lungren’s nomination centers on the confusing and seemingly conflicting provisions of the 1976 amendment setting forth procedures for filling vacancies in statewide offices. The provisions have never been tested in court.

The first sentence says the governor’s nominee to fill a vacancy “shall take office upon confirmation by a majority of the Senate and a majority of the membership of the Assembly.”

However, the second sentence says that “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.”

Lungren’s Interpretation

Lungren asserts that the second provision means both houses must reject a nominee before he can be barred from office. Senate Democrats, citing formal opinions by state Atty. Gen. John K. Van de Kamp and Legislative Counsel Bion Gregory, say both houses must confirm a nominee before he can be sworn in.

Deukmejian nominated the Long Beach Republican congressman to the treasurer’s post after the death of Democrat Jesse Unruh in August. In the long legislative fight that followed, the Assembly confirmed Lungren by a vote of 43 to 32 but the Senate rejected him by a vote of 19 to 21.

To settle the issue, Lungren filed a friendly lawsuit against Deukmejian and other state officials, asking the court to hear the case on an expedited basis and issue an order directing that he be allowed to take office.

Roberti’s Argument

Roberti filed briefs with the court agreeing that the justices should decide the issue but saying they should prevent Lungren from taking office. Otherwise, the legislative leader said, the Senate’s denial of confirmation would be improperly reduced to a “meaningless act.”

In another action Wednesday, the justices let stand a state appeal court ruling that the child visitation rights of a homosexual parent cannot be restricted without proof of harm to the child.

The justices refused to hear an appeal by Linda Birdsall asking them to reinstate a trial court order barring her former husband, Greg, from exercising overnight visitation rights with their 9-year old son while in the presence of a known homosexual.

A state Court of Appeal in Santa Ana overturned the order last January, concluding that evidence of a parent’s homosexuality in itself is not sufficient to constitute harm to a child.