Schwarzenegger’s Legal Secretary Andrea Lynn Hoch Issues Statement on California Cons

For Immediate Release:
Thursday, February 11, 2010

Governor Schwarzenegger’s Legal Secretary Andrea Lynn Hoch today issued the following statement on the Governor’s Lieutenant Governor nominee Senator Abel Maldonado and what the California Constitution requires for confirmation:

"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.