CALIFORNIA COMMENTARY : Legislative Games Shortchange Voters : Two Republicans engender the chaos, one by violating a contract and the other by unethical behavior.

Voters in November elected a majority of Republicans to both houses of Congress. As a result, control of both houses is passing in an orderly manner to the GOP. That’s the way democracy is supposed to work in America.

California voters elected Republicans in 41 out of 80 Assembly districts. When the Assembly convened last week, no one took control and all we got was chaos. That’s not the way democracy is supposed to work.

Who is to blame?

Not Willie Brown and the Democrats. Politics ain’t beanbag, as an old-time political boss once said, and Democrats have the right to fight for the values and constituency interests they were elected to defend.

Nor are the Republicans to blame. Their walkout from the State Capitol last Tuesday was unseemly, but it was the only means available to prevent what the Republicans understandably regard as theft.

Real responsibility rests on the backs of two men who were elected to the Assembly as Republicans: Richard L. Mountjoy of Arcadia and Paul Horcher of Diamond Bar.

Mountjoy’s is the more complicated case. After he won the Republican primary in June, the Senate seat in his district became vacant, requiring a special election. To save money, the special election was held on Election Day in November. Because of a quirk in California law, Mountjoy was on the ballot for both the Assembly and Senate seats. He was elected to both.

When Mountjoy declared for the Senate, he took an oath that he intended to serve if elected. He had taken a similar oath when he filed for the Assembly, but at that time he could not have known that a vacancy would arise in the Senate. When he became a candidate for the Senate, he asked voters to support him for the Assembly merely in order to bring about another special election, at which another Republican could run. Mountjoy modified his plans because of the close partisan division in the Assembly. He announced that he would be sworn in as a member of the Assembly, vote to help assure the selection of Republican Jim Brulte of Rancho Cucamonga as Speaker and then assume his senatorial office. He obtained a legal opinion from the legislative counsel saying he could do this.

In a legal opinion requested by Willie Brown’s staff, I concluded that both Mountjoy and the legislative counsel are wrong. The Senate and the Assembly, not the courts, are empowered to resolve the question under the state Constitution. In doing so, they should be guided by two fundamental principles that transcend the admittedly murky and arcane legal doctrines that both the legislative counsel and I considered.

First, Mountjoy should be held to his contract with the voters. Both formally, in the oaths he swore to, and informally, in the posture he took in his campaign, Mountjoy made it clear he would serve in the Senate if he was elected to both offices. The Legislature should treat those promises as binding.

Second, even if the legislators believe Mountjoy can now choose in which chamber to serve, it violates the basic constitutional requirement of a bicameral Legislature for him to go back and forth between the chambers at his own convenience. He should be forced to choose, once and for all.

Mountjoy, then, should not be permitted to vote for the Assembly Speaker, at least unless he is willing to renounce his Senate seat. Horcher, on the other hand, unquestionably has the right to vote for Speaker, and there are no legal constraints on how he chooses to exercise that right. Although he was elected as a Republican, he voted for Democrat Brown for Speaker.

Horcher’s vote was legal but irresponsible. Legislative elections and the Legislature itself are organized along party lines. There is much concern nowadays about our ability as voters to hold the government accountable. Our only realistic chance to do that is through the party system. One of the good things about this year’s national election is that we now can feel quite certain about who is responsible for what happens in Congress.

Horcher, by defecting from his party, undermines this system of partisan accountability. How were voters in the 60th District supposed to vote to replace Willie Brown as Speaker of the Assembly? Only by voting for Horcher, the listed Republican candidate on the ballot.

Horcher says that he has been treated badly by the Republicans in the Assembly and that the Assembly Republicans are too conservative for him. He has no right to undermine the mandate of the people in an election because of his personal grievances and opinions. No one forced him to run for reelection as a Republican.

Mountjoy should have been sworn in as a senator on Dec. 5 and played no part in the speakership contest. Horcher should have voted for Brulte and then, if he chose, quit the Republican Party.

If both men had done the right thing, Brulte would have been chosen by a 40-39 margin and the people’s choice on Election Day would have been carried out.

Instead, we got a tie and chaos. Great entertainment but lousy government. Even though Mountjoy and Horcher are both wrong, there is a big difference between the two cases.

Mountjoy is acting openly and aboveboard. He is following a legislative counsel’s opinion, presumably in good conscience. I believe his actions violate the letter and spirit of the Constitution, but there is nothing personally dishonorable in his behavior.

Horcher’s actions are unethical. Often we think of ethics too narrowly. Avoidance of theft, corruption and the like are important, but the real meaning of ethics in public life is acceptance of the full measure of responsibility inherent in public service.

Horcher is, as the Republicans charge, a political traitor. Fortunately, in California we have the right to recall elected officials who behave irresponsibly. The voters in Horcher’s 60th Assembly District should exercise that right as rapidly as possible.