45 Cal.3d 727, S004740, Lungren v. Deukmejian

Docket Nº:S004740
Citation:45 Cal.3d 727, 248 Cal.Rptr. 115, 755 P.2d 299
Opinion Judge:[11] The Court
Party Name:Lungren v. Deukmejian
Attorney:[6] Nielsen, Merksamer, Hodgson, Parrinello & Mueller, James R. Parrinello, John E. Mueller, Marguerite M. Leoni, Louise J. Rosen-Garcia, Jewell J. Hargleroad and Calvin R. Massey for Petitioners. [7] Vance W. Raye and Kirk S. Louie for Respondent George Deukmejian. [8] John K. Van de Kamp, Attor...
Case Date:June 23, 1988
Court:Supreme Court of California

Page 727

45 Cal.3d 727

248 Cal.Rptr. 115, 755 P.2d 299

Daniel E. LUNGREN et al., Petitioners,


George DEUKMEJIAN, as Governor, etc., et al., Respondents;

David ROBERTI, as President Pro Tem., etc., et al., Real Parties in Interest;

John K. Van de Kamp, as Attorney General, etc., Intervener.

No. S004740.

Supreme Court of California

June 23, 1988.

In Bank

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[Copyrighted Material Omitted]

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Nielsen, Merksamer, Hodgson, Parrinello & Mueller, James R. Parrinello, John E. Mueller, Marguerite M. Leoni, Louise J. Rosen-Garcia, Jewell J. Hargleroad and Calvin R. Massey, San Francisco, for petitioners.

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Vance W. Raye and Kirk S. Louie, Sacramento, for respondents.

Joseph Remcho, Robin B. Johansen, Lowell Finley, Julie M. Randolph, Remcho, Johansen & Purcell and Charles C. Marson, San Francisco, for real parties in interest.

John K. Van de Kamp, Atty. Gen., Richard D. Martland, Chief Asst. Atty. Gen., N. Eugene Hill, Asst. Atty. Gen., Paul H. Dobson, Geoffrey L. Graybill, Floyd Shimomura and Shelley Mydans, Deputy Attys. Gen., for intervener.

Donald K. Tamaki, Minami, Lew & Tamaki, Robert L. Rusky and Hanson, Bridgett, Marcus, Vlahos & Rudy, San Francisco, as amici curiae on behalf of real parties in interest and intervener.


We are called on in this case to construe the provisions of article V, section 5, subdivision (b), of the California Constitution (hereafter section 5(b)), which sets forth the requirements for confirmation by the Legislature of the Governor's nominee to fill a vacancy in the office of Treasurer and other constitutional offices. Specifically, we shall decide whether under that provision a nominee may be viewed as having been confirmed by the Legislature even though he has been confirmed by only one house and his nomination has been rejected by the other house.

Jesse Unruh, who had been elected Treasurer, died on August 4, 1987. Elizabeth Whitney, his chief deputy, became Acting State Treasurer, as provided by section 1775 of the Government Code. Thereafter, on December 1, 1987, Governor Deukmejian appointed Congressman Daniel Lungren to fill the office of Treasurer and forwarded his name to the Senate and Assembly for confirmation, as required by section 5(b). There ensued several days of hearings on the nomination by committees of both houses, as well as debate on the floor of each chamber. On February 25, 1988, the Assembly voted to confirm Lungren's nomination, but the Senate voted to deny confirmation.

The Governor declared that confirmation by one house was sufficient under section 5(b) and that he therefore viewed Lungren as having been confirmed. However, the Governor, in a letter to Lungren, stated that he would not issue a commission to enable him to assume the office because to do so under the circumstances would have "serious negative consequences"

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for marketability of state bonds, and Lungren's ability to carry out the duties of Treasurer would be compromised by a legal challenge to the appointment. 1

Lungren then filed an original petition for a writ of mandate in this court to enforce his right to assume office. 2 He named as respondents the Governor, the Secretary of State, the Controller, and Acting Treasurer Whitney. The President Pro Tem. of the Senate was named as real party in interest. The petition alleges that Lungren has satisfied all requirements necessary to assume the office of Treasurer under section 5(b), but that the Governor has refused to issued him a commission, and even if he were to do so, the remaining respondents would refuse to carry out the duties imposed on them by law to allow Lungren to assume office. 3 Lungren seeks a writ of mandate commanding respondents to comply with these duties and to allow him to assume office, and asks that Whitney be directed to proceed immediately with all pending bond sales until Lungren assumes office.

Because of the importance of the issues and the need for their speedy resolution, we retained the petition and granted an alternative writ. (Jolicoeur v. Mihaly (1971) 5 Cal.3d 565, 570, fn. 1, 96 Cal.Rptr. 697.) We also granted the motions of the Senate to intervene as a real party in interest, and of the Attorney General to file a complaint in intervention. For ease of reference, the Attorney General, the Senate, and the respondents named in the petition, with the exception of the Governor, will be referred to collectively as "respondents," even though each of them does not make every argument attributed to "respondents." The Governor has filed a brief in support of Lungren, making substantially the same arguments as those advanced by him.

Before we reach the merits of the issues raised by the parties, we must discuss respondents' claim that mandate is not available to Lungren because he does not have a present interest in the office of Treasurer and none of the state officials he has joined in the action has a present duty to him. Mandate will not lie unless the applicant for the writ has a present interest in the remedy he seeks and the respondent has a present

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duty to perform the acts the applicant seeks to compel. (Treber v. Superior Court (1968) 68 Cal.2d 128, 134, 65 Cal.Rptr. 330; Communist Party v. Peek (1942) 20 Cal.2d 536, 540; Northridge etc. Water Dist. v. McDonell (1958) 158 Cal.App.2d 123, 127-128.) The petitioner's right and the respondent's duty are measured as of the time the proceeding is filed. (Christ v. Superior Court (1931) 211 Cal. 593, 600; McGinnis v. Mayor and Common Council (1908) 153 Cal. 711, 715.)

In support of their claim that Lungren does not have a present interest in the office of Treasurer, respondents cite article VII, section 7, of the Constitution. It provides, "A person holding a lucrative office under the United States or other power may not hold a civil office of profit." The purpose of the provision is to prevent "dual office-holding by one person under two separate and distinct governments, and the separation of the allegiance justly due one by its officers from that due to another power." (McCoy v. Board of Supervisors (1941) 18 Cal.2d 193, 196.) Lungren is a United States Congressman, and is thus prohibited by this provision from holding that position and the office of Treasurer simultaneously. He acknowledges this, but explains that he will resign his congressional seat if we decide in his favor, and therefore he will not "hold" the two offices at the same time.

We accept Lungren's representation in this regard. His future resignation would remove the bar of article VII, section 7, of the Constitution, but it does not follow that he has a present right to assume the office of Treasurer. Clearly he does not: the fact that he is a Congressman precludes him from assuming the office of Treasurer. Because he cannot now assume that office, it follows that respondents owe him no present duty to facilitate his assumption of it.

Thus, it is clear to us that Lungren is not presently entitled to the remedy he seeks. Nevertheless, the same considerations that led us to exercise our original jurisdiction convince us that we should decide the merits of his claim that he has been confirmed as Treasurer. According to the allegations in the petition, a prolonged dispute over whether Lungren is entitled to assume the office could imperil the state's ability to market bonds and adversely affect the state's bond rating. Respondents deny that the state's bond rating is at risk pending adjudication of his rights, but they agree that expeditious resolution of the dispute on its merits is in the public interest. No one can know with assurance whether the state's fiscal position will be adversely affected by the failure to speedily resolve the dispute. Nevertheless, we are of the view that there is sufficient uncertainty regarding the matter to justify deciding the entitlement of Lungren to the office on its

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merits in this proceeding rather than postponing a decision until he resigns his congressional seat and thereafter demands that respondents perform the acts purportedly required of them.

We proceed, then, to a discussion of the merits of his claim. Section 5(b), adopted by the people as an assembly constitutional amendment in 1976, provides in part, "Whenever there is a vacancy in the office of the ... Treasurer ..., the Governor shall nominate a person to fill the vacancy who shall take office upon confirmation by a majority of the membership of the Senate and a majority of the membership of the Assembly and who shall hold office for the balance of the unexpired term. In the event the nominee is neither confirmed nor refused confirmation by both the Senate and the Assembly within 90 days of the 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...."

The first sentence of the section is clear: the nominee takes office if he is confirmed by a majority of each house of the Legislature. This is the normal means by which a bicameral legislative body takes action. Unless otherwise expressly provided by law, both houses must concur in enacting legislation or taking any other action. (Cal. Const., art. IV, § 1.) A measure fails of passage if either house does not approve it, whether such failure arises from an express negative vote or from inaction. The second sentence of section 5(b) was evidently intended to state an exception to this normal mode of operation. Our task is to determine the scope of the exception.

We shall conclude that the language of the second sentence of section 5(b), standing alone, is susceptible to the construction offered by both respondents and Lungren, but that, when the section is read as a whole, it supports respondents'...

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