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"
Lungren then filed an original petition for a writ of mandate in this court to enforce his right to assume 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, 488 P.2d 1].) 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.
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
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' view that a negative vote on the confirmation by either house of the Legislature results in disapproval of the nomination. Further, that the legislative history of section 5(b), as derived from the ballot pamphlet submitted to the voters at the election in which the provision was adopted, confirms the latter view as to its meaning. Finally, we shall reject an alternative legislative history argument advanced by Lungren in support of his position.
I. The Language of Section 5(b)
According to respondents, the only effect of the second sentence is to prohibit the Legislature from rejecting a nominee by failing to act on a nomination. Since the result of such inaction under this view is that the nominee is deemed to be confirmed, the Legislature has an incentive to take a vote on the nomination within 90 days.
Lungren claims that the construction he advances is the only reading that gives effect to the word "both" in the second sentence, and that if we do not adopt his interpretation, that word would be read out of the sentence. This is plainly incorrect. The word "both" may be viewed as referring only to a situation in which both houses fail to vote on the nomination: in that event, the nominee would be "neither confirmed nor refused confirmation by both the Senate and the Assembly," in the words of the second sentence. This is essentially the "pocket veto" theory of respondents.
But the "plain meaning" rule does not prohibit a court from determining whether the literal meaning of a statute comports with its purpose or whether such a construction of one provision is consistent with other provisions of the statute. The meaning of a statute may not be determined from a single word or sentence; the words must be construed in context, and provisions relating to the same subject matter must be harmonized to the extent possible. (Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1386-1387 [241 Cal.Rptr. 67, 743 P.2d 1323].)
As we conclude above, however, the first and second sentences do not represent alternative and equal means of confirmation. Rather, the first provides the primary thrust of the section, while the second is a proviso limiting the operation of the first, and hence must be read narrowly.
More important, under Lungren's interpretation there is a fundamental inconsistency between the first and second sentences. The first sentence would mean not that both houses must confirm, but that confirmation by either would suffice — or even that confirmation would result if one house voted to reject and the other failed to act
Moreover, the 90-day waiting period required by the second sentence is incomprehensible if, as Lungren contends, confirmation by one house is sufficient. There would be no rational reason for a nominee to wait 90 days before assuming office following an affirmative vote on his nomination by
Finally, to accept Lungren's position would seriously degrade the power and dignity of one house of the Legislature in the confirmation process: an express rejection of the nominee by that house would be rendered a nullity. So far as we are aware, there is no precedent for a parliamentary procedure that calls for a legislative body to vote on a measure and then ignores its negative vote. In a bicameral Legislature such as ours, the legislative power rests in both houses. (Cal. Const., art. IV, § 1.) We are not free to depart from this basic tenet of our constitutional system unless compelled to do so by the clear command of some other provision of law. In our view, the language of section 5(b) does not authorize such a drastic departure.
II. The Legislative History of Section 5(b)
A. The Ballot Pamphlet
The foregoing conclusion is bolstered by the legislative history of the section, which supports respondents' assertion that a nomination is rejected if either house of the Legislature votes to reject the nominee within 90 days of the time the nomination is submitted by the Governor, and that the purpose of the second sentence is to prevent rejection by mere inaction.
Section 2 of the 25th Amendment was added to the United States Constitution in 1967 to provide for filling a vacancy in the office of Vice President. It is strikingly similar to the first sentence of section 5(b).
Section 5(b) of our Constitution, adopted by the voters as Proposition 9 at the General Election in 1976, was clearly a part of this movement, sparked by the 25th Amendment, to provide for the filling of vacancies in state offices. The ballot argument in favor of the measure informed the voters that it was modeled after the 25th Amendment, "which provides that a nominee for the Office of Vice President must be approved by the Senate and House." (Ballot Pamp., Gen. Elec. (Nov. 2, 1976), argument in favor of Prop. 9, p. 38 [hereafter ballot argument].) There can be no doubt that under the 25th Amendment and the constitutional provisions of the other jurisdictions cited, the requirement that both houses must confirm a nominee, embodied in the first sentence of section 5(b), means that an express refusal by one house to approve the nomination or the failure of either house to vote thereon results in rejection. Lungren's claim that the first sentence means only that the nominee might possibly take office sooner than if he had been rejected by one house is particularly unpersuasive in light of the close similarity between the first sentence of the section and the 25th Amendment, and the fact that the section was expressly modeled after the amendment which, the voters were told, requires confirmation by both houses of Congress.
Indeed, the ballot pamphlet repeated at least half a dozen times that the measure requires confirmation by both houses. The point was made in the ballot title and the analysis by the Legislative Analyst,
But neither the 25th Amendment nor the constitutional provisions in the other jurisdictions referred to above include a provision similar to the second sentence of section 5(b). As just observed, in these jurisdictions the failure of either or both houses to vote on the nomination would result in rejection by inaction.
The ballot title explicitly stated that if the Legislature "does not act within 90 days of Governor's nomination ... appointees may take office as if confirmed." (P. 739, ante, fn. 13, italics added.)
The argument against the measure, written by Assemblyman Antonovich, described the situation that would exist if the two houses could not agree on whether to confirm the nominee: "Proposition 9 would also result in a political football game between the Legislature and the Governor. As the Governor would be subject to the whims of either the Senate or the Assembly, he could be rendered virtually powerless. The simple act of filling a vacancy could assume monstrous proportions if the Senate or Assembly could not reach agreement regarding a candidate that would be acceptable to both. Hence, the appointment could bounce back and forth between the Governor and Legislature, with each rejection involving more time wasted. In turn, the vacancy would remain unfilled and unproductive, while the Legislature becomes further embroiled in political maneuvering." (Ballot argument, p. 39, italics added.)
The proponents, in response, impliedly acknowledged that the nomination would fail if the two houses did not agree, since they rebutted the foregoing argument with the statement that if there was a delay in filling the office because of a "genuine disagreement on the qualification of a candidate" the "tasks of the vacant office [would be] performed by the appropriate deputy." (Ibid.)
Lungren argues that the ballot pamphlet is inconclusive as to the intention of the voters because some language in it supports his view as to the meaning of the section, and because it is impossible to know whether the voters accepted the arguments made by one side or the other in approving the measure. As to the first of these assertions, the portions of the pamphlet relied on by Lungren do not bear him out. For example, he cites a statement by the Legislative Analyst as follows: "If the Senate and Assembly neither accept nor reject the person designated to the vacancy by the Governor within 90 days, the person automatically assumes office." (Ballot Pamp., Gen. Elec. (Nov. 3, 1976), analysis of Prop. 9 by Legislative Analyst, p. 36.) But as we make clear above, this language is subject to the construction advocated by respondents, i.e., that the reference to the Legislature's acceptance or rejection of the nominee relates only to its failure to act on the nomination. There was no such failure here.
Lungren's second contention, that it cannot be determined whether the voters agreed with the argument of one side or the other in approving the measure, misses the point; whether one side or the other was more persuasive, the fact is that the proponents and the opponents both premised their arguments on an interpretation of the proposal that is inconsistent with Lungren's position, and that premise was communicated to the voters. Furthermore, Lungren's claim proves too much; the assertion that the voters' motivation cannot be determined from the ballot argument could be made in every case involving a measure adopted by vote of the people.
B. Lungren's Legislative History Argument
Lungren advances a complicated and unpersuasive legislative history argument on his own behalf. Proposition 9, which embodied section 5(b), originated as Assembly Constitutional Amendment No. 94 (hereafter ACA 94), introduced by Assemblyman (now Senator) Lockyer, who was also one of the persons who later argued in favor of the proposition in the election ballot pamphlet. ACA 94 in turn had its genesis in a bill introduced by the assemblyman in 1974 (Assem. Bill No. 253, hereafter AB 253) which, after undergoing various amendments, passed both houses, but was vetoed by the Governor in 1975. AB 253, in its final version, and ACA 94 were substantially similar to Proposition 9.
Lungren relies on the legislative history of AB 253, arguing that it demonstrates the Legislature intended that the bill would require that both
We disagree. The statement in the staff report represents neither the intent of the Legislature that drafted the section (California Teachers Assn. v. San Diego Community College Dist. (1981) 28 Cal.3d 692, 700-701 [170 Cal.Rptr. 817, 621 P.2d 856]), nor that of the electorate in adopting it (People v. Castro (1985) 38 Cal.3d 301, 311-312 [211 Cal.Rptr. 719, 696 P.2d 111]).
The alternative writ is discharged and a peremptory writ is denied.
He also challenges some of the authorities relied on by respondents for the rule that provisos are strictly construed, but advances no support for his assertion that these cases are distinguishable.
Furthermore, if the measure was drafted with a view to allowing one house to change its vote within 90 days, it is difficult to see why the same option was not afforded if both houses voted to confirm within that time. Unfavorable information regarding a nominee could surface within the 90-day period whether one or both houses voted on the nomination. Lungren concedes that in this situation the nominee would take office immediately without waiting 90 days. Indeed, as we make clear above, under his interpretation of the section, this ability to assume office immediately without waiting 90 days is the primary function of the first sentence.
The analysis of the Legislative Analyst was as follows: "The State Constitution currently authorizes the Governor to fill vacancies in the offices of ... Treasurer ... without approval of the Legislature.
"This proposal would require the Governor's appointee to a vacancy ... to be approved by a majority of the Senate and Assembly. If the Senate and Assembly neither accept nor reject the person designated to the vacancy by the Governor within 90 days, the person automatically assumes office." (Ballot Pamp., Gen. Elec. (Nov. 2, 1976) p. 36.)