After securing passage in the state Senate Thursday morning, Maldonado’s bid stalled in the Assembly on a 36-35 vote. A second vote in the afternoon only provided one more “yes” vote. Seven members did not cast a vote. One seat is vacant. The lack of 41 votes -- a majority of Assembly members, not just those present and voting -- kills most bills. But the governor’s office, on counsel from Legal Affairs Secretary Andrea Hoch, is saying that the lack of 41 votes against Maldonado’s confirmation in the Assembly means that the Santa Maria Republican will be the next 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,” Hoch said in an email Thursday afternoon. “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.” Hoch is citing Article 5 subsection 5(b) of the state Constitution, which says that a nominee takes office if he or she is “neither confirmed nor refused confirmation” by both chambers.
Assembly leaders say Hoch has it all wrong. They produced a 1988 Legislative Counsel opinion suggesting that anything less than “40 affirmative votes” in the Assembly means “the nomination is refused."
Former state Supreme Court Justice Cruz Reynoso, now a professor at UC-Davis law school, agreed with the Assembly’s interpretation.
“Obviously the Legislature did act by not having a majority to confirm his vote,” Reynoso said. “The governor is using an imaginative approach.”
If a lawsuit ensues, Reynoso said, it will almost certainly go directly to the Supreme Court.
But Brian Landsberg, a professor at McGeorge School of Law in Sacramento, said the governor might have a case.
“I think the governor’s argument would be that ‘refuse’ is an active verb and does not mean ‘fail to’ confirm,” Landsberg said in an email. “This seems consistent with other uses of the word in the California Constitution. … The California Constitution can be read to say that the governor’s nominee takes office unless affirmatively rejected [or at least until a majority vote against confirmation].”
The Assembly recessed late Thursday with no plans to reconsider Maldonado’s confirmation. Gov. Arnold Schwarzenegger has not said when he plans to swear in his pick for lieutenant governor.
— Cheryl Miller
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