Former Republican Governor Arnold Schwarzenegger may be a scumbag, but he was perfectly within his rights to commute the sentence of the son of his political ally, Democratic Assembly Speaker Fabian Nuñez, in the waning days of his administration.

The California Third District Court of Appeal used slightly less offensive language (pdf) in describing an action they, like a Superior Court judge before them, found repulsive, but not a violation of law.

Schwarzenegger slashed Esteban Nuñez’s 17-year prison sentence for manslaughter to 7 years, but did not give advance notice to the prosecutor or family of the victim, as is the custom in commutations and the law in paroles. The governor signed the commutation on December 30, 2009, and announced it hours before he left office three days later.

Nuñez the younger was involved in an attack on three men near the campus of San Diego State University in October 2008. Luis Santos was knifed to death. Nuñez stabbed the other two guys but apparently not Santos. The governor said the penalty was too harsh because Nuñez had not delivered a fatal blow, but acknowledged his critics:

“There’s criticism out there. I think it’s just because of our working relationship and all that. It maybe was kind of saying, ‘That’s why he did it.’ Well, hello! I mean, of course you help a friend.”

Nuñez was initially charged with the murder of Santos and assault with a deadly weapon for the other two guys. He plea-bargained it down to manslaughter.

San Diego County District Attorney Bonnie Dumanis argued to the trial court that the Victim’s Bill of Rights Act of 2008, also known as Marsy’s Law, clearly states that victims have an opportunity to speak at “parole or other post-conviction release proceedings.” Superior Court Judge Lloyd Connelly said the law doesn’t apply to a governor’s clemency decision and the appellate court agreed. Clemency is not a proceeding, they ruled.

The judges buttressed their reasoning with the fact that parole statutes were amended to conform to Marcy’s Law, but executive clemency statutes were left untouched. They still only refer to notifying the district attorney before a pardon.

“We are compelled to conclude that, while Schwarzenegger’s conduct could be seen as deserving of censure and grossly unjust, it was not illegal,” Associate Judge Harry Hull Jr. wrote for the appellate court.

Presiding Judge Vance W. Raye wrote in a separate, concurring opinion, “As reprehensible as the Governor’s action in this instance might have been, it would be equally reprehensible to ignore the clear language of a constitutional provision.”

Raye and Hall were appointed to the court by Republican Governor Pete Wilson, and Raye was elevated to presiding judge by Schwarzenegger. Associate Justice William J. Murray Jr., who concurred with the decision and wrote concurrently, was appointed to the court by Schwarzenegger in 2010.

The judges wrote of the governor in harsh tones, but always added “weasel word” qualifiers like “seen as” and “might have been” to any condemnation. Raye was more direct in chastising anyone who would question the court’s application of existing laws: “That is not how a constitutional democracy works.”

–Ken Broder

To Learn More:

An Unhappy Court Upholds Schwarzenegger Reduction of Núñez Prison Sentence (by Denny Walsh, Sacramento Bee)

Appeals Court Upholds Schwarzenegger's Clemency for Nuñez Son (by Christopher Goffard, Los Angeles Times)

Court Reluctantly Upholds Schwarzenegger Clemency for Ex-Speaker’s Son (by Bob Egelko, San Francisco Chronicle)

Schwarzenegger Beats the Rap for “Repugnant” Sentence Commutation as Governor (by Ken Broder, AllGov California)

Frederico Santos et al v. Edmund G. Brown, Jr (California Court of Appeal for the Third District) (pdf)