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Is Maldo in or out?

By Lisa Vorderbrueggen
Thursday, February 11th, 2010 at 6:38 pm in Lt. Governor.

Maldonado

Maldonado

As California Target Book co-author Allan Hoffenblum said to me earlier today, the California Legislature couldn’t pass a resolution favoring motherhood these days without a partisan fight.

He was referring to the news this afternoon that Republican State Sen. Abel Maldonado is either the next lieutenant governor or he is not.

The Senate confirmed Maldonado’s nomination but the Assembly rejected him on a 37-35 vote. (Click here to read the news story.)

Gov. Arnold Schwarzenegger’s people say it takes 41 votes — a majority of the 80-member Assembly — to legally reject the nomination. So, the governor plans to swear Maldonado into office, an act that could send the dispute into the hands of a judge.

“California Democrats stood strong and stood for principle today when the Assembly rightfully voted to reject Governor Schwarzenegger’s appointment of Abel Maldonado for lieutenant governor,” said California Democratic Party Chairman John Burton in an email statement. “If not for the courageous actions of the Assembly, California Democrats would have been party to putting an un-elected Republican, with a history of making backroom deals, a heart-beat away from the governor’s office – to say nothing of the vote the lieutenant governor has on the critical State Lands Commission.”

Schwarzenegger’s Legal Secretary Andrea Lynn Hoch disagreed. She issued this statement:

“The California Constitution is clear: if the legislature does not act to refuse to confirm the Governor’s nominee, his appointment moves forward. The Constitution only speaks to ‘refusal’ of confirmation. Furthermore, the Lungren decision does not apply to this situation. The Lungren case addresses an entirely different situation and is not instructive here. Based on the Assembly vote, Senator Maldonado will be sworn in as Lieutenant Governor.”

Article V of the California Constitution states that the nominee takes office if he or she is “neither confirmed nor refused confirmation” by both chambers. Today’s Assembly vote is not a “refusal” to confirm, there is neither a confirmation nor a refusal to confirm by that chamber and, under the text of the Constitution, the nominee would take office.

The decision in the case of Lungren v. Deukmejian (1988) 45 Cal.3d 727 dealt with a situation in which the Assembly voted to confirm and the Senate voted to deny. The court held that in that scenario, the nominee would not take office. The Lungren decision has nothing to say about the question here – when a majority isn’t reached, does the vote count as a refusal. According to the California Constitution, today’s Assembly vote is not a “refusal” to confirm.

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  • ted ford

    It is absolutely shameful that all of east bay Assembly members voted against Abel Maldonado. Maldonado was the only Republican to make the bipartison and courageous move to support the budget. For that he was expelled from the Republican caucus. But he gets no gratitude from our local Democrats. The take their marching orders from John Burton, the premier hack of California politics. Some politicians have the courage to do the right thing. Unfortunately, none of our local Democrats measure up to the test. The handful of Assembly Democrats statewide who voted to approve the nomination have my respect. The rest of you are hacks.

  • http://sandiegobillproblems.com Carl Starrett

    I don’t have immediate access to the Lungren v. Deukmejian case, but I think Arnie needs to take a closer look at Section 5(b) of Article V of the California Constitution. It reads in the pertinent part as follows:

    “In the event the nominee is either 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; provided, that if such 90-day period ends during a recess of the Legislature, the period shall be extended until the sixth day following the day on which the Legislature reconvenes.”

    I interpret this to mean that the Senate and Assembly have 90 days to act on the nomination. Interpreting the vote as neither a confirmation for refusal confirm is debatable, but swearing Maldo in before the end of the 90 day action period seems to be out of line.