Commentary: Assembly, Schwarzenegger battle over Maldonado is pointless

The Sacramento BeeFebruary 12, 2010 

Californians are disgusted with the petty antics of the governor and the Legislature, polls tell us, and want them to balance the deficit-ridden state budget and otherwise do the public's business.

However, Gov. Arnold Schwarzenegger and Democratic leaders of the state Assembly are locked in a political, semantic and ultimately legal duel over something that should have taken about five minutes — confirming Republican Sen. Abel Maldonado to serve 10 months in the completely meaningless office of lieutenant governor.

The state Senate confirmed Maldonado handily Thursday, but the more partisan Assembly deadlocked, with Maldonado failing to achieve a majority. And under a somewhat ambiguous section of the state constitution, that failure either constitutes "refused confirmation" or a failure to act, depending on which legal opinion one accepts.

That means, the Governor's Office said, that Schwarzenegger will swear Maldonado in later this month and then dare the Assembly to challenge his legitimacy in court. That, in turn, probably means the state Supreme Court will not only have to parse the constitution's convoluted, 34-year-old section dealing with confirmation of appointees but revisit a 1988 decision.

The latter involved almost identical circumstances. Then-Congressman Dan Lungren was confirmed by the Assembly after then-Gov. George Deukmejian appointed him as state treasurer, but the Senate rejected him and the court upheld the rejection. The one difference – on which Schwarzenegger and Maldonado are hanging their legal hats – is that in 1988, a majority of the Senate voted against Lungren. On Thursday, less than a majority, 37 Democrats, voted against Maldonado.

Dan Maguire, a Schwarzenegger lawyer, called that a "big difference," adding that the Assembly's vote was not the "refused confirmation" required by the constitution – but whether the court will agree is highly problematic, given the overall tenor of the 1988 decision.

To read the complete column, visit www.sacbee.com.

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