What does it take to get rejected? Lawyers weigh in on lieutenant governor dispute

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As Gov. Arnold Schwarzenegger girds for a legal fight with the Legislature over the confirmation of Sen. Abel Maldonado (R-Santa Maria) as lieutenant governor, three lawyers and academics interviewed by The Times agreed with his interpretation of the state Constitution. The Assembly, meanwhile, provided reporters with a legal opinion from the Legislative Counsel from 1988 saying the opposite.

The situation is that Maldonado won approval in the Senate, but in voting Thursday the Assembly has so far not reached a majority in favor of either confirming or rejecting him. The Constitution says the nominee takes office if he or she is ‘neither confirmed nor refused confirmation’ by both houses of the Legislature. So the question is, if the Assembly votes but does not have a majority to approve him, would that be the same as refusing confirmation? The governor says that without a majority of 41 votes to reject Maldonado, he has not been refused and should take office.

Two professors at the Pacific McGeorge School of Law, Leslie Gielow Jacobs and Brian Landsberg, said the governor’s interpretation is reasonable. So did Tom Hiltachk, a Sacramento elections lawyer who used to work for Schwarzenegger but does not currently. All three said that the Assembly is not ‘refusing’ to confirm Maldonado unless it has actively voted to reject him.

‘The failure to say no is not a rejection,’ Landsberg said. ‘I think no means no, and yes means yes, and if we don’t have a yes or a no, then it would be reasonable to say they haven’t taken a position.’

And if the Assembly has not taken a position, Maldonado would be confirmed.

However, the 1988 opinion from then-Legislative Counsel Bion M. Gregory (it pertains to the office of treasurer, which has the same confirmation rules as lieutenant governor) argues that if the Assembly votes but does not confirm the appointee, he or she has been refused confirmation. The opinion said that ‘the defeat of a positive vote to confirm must be deemed a refusal to confirm ….’ the nominee.

Some in the Legislature have been pointing to a legal case from that time in which current congressman Dan Lungren (R-Gold River) went to court arguing that he should be seated as treasurer because he was rejected by only one house of the Legislature, not both. But that situation was different than Maldonado’s, because the Senate had enough votes to reject Lungren, and he lost in court.

[Updated at 5:21 p.m.: After reviewing the Legislative Counsel’s opinion, Leslie Gielow Jacobs, director of the Capital Center of Public Law & Policy at McGeorge, said she still thinks the governor’s interpretation is reasonable. But she says the Legislature’s interpretation – that if the Assembly voted and did not confirm Maldonado, it amounts to a refusal – is better.

Barry McDonald, a professor of constitutional law at Pepperdine University in Malibu, also said the governor has the weaker argument because the California Supreme Court, in the Lungren case referenced above, suggests that the constitutional language about what happens when there is a refusal to confirm refers to a “pocket veto,� in which the Legislature does not vote at all. He also said the governor’s reading would ‘eviscerate’ the law’s main thrust -- that a majority of lawmakers are needed to confirm the lieutenant governor.]

-- Michael Rothfeld in Sacramento