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A Successor to Davis Is Already in Place

August 05, 2003|Joseph R. Grodin | Joseph R. Grodin, a professor of law at UC's Hastings College of the Law, is a former justice of the California Supreme Court and co-author of "California Constitution: a Reference Guide" (Greenwood Press, 1993).

Wait a minute! Imagine a group of otherwise sane, reasonable people drafting a recall provision for the California Constitution that would create the following scenario:

In the event a majority voted to recall the governor, the governor's successor would be whoever received the most votes among a field of candidates who gained a place on the ballot within a span of weeks by paying a relatively small fee or collecting a relatively small number of signatures; for the balance of the recalled governor's term, the largest state in the Union would be governed by someone who perhaps had the support of only a tiny fraction of eligible voters, in all probability a smaller number than the number of those voting to recall.

Fortunately, that is not what the drafters did, or at least not according to the most reasonable interpretation of the applicable constitutional provisions. Article II, Section 15 of the California Constitution provides that upon the filing of a petition containing the requisite number of signatures, an election will be held "to determine whether to recall an officer and, if appropriate, to elect a successor."

When is it "appropriate" to do that? The Constitution does not say, or at least not directly.

Some say it is inappropriate only in the case of appellate judges, but it is unlikely that this is what is meant by the term "appropriate" in Article II because there is a separate section of the Constitution that deals with recalling judges.

In any case, the Constitution does tell us, by implication, that in the case of a gubernatorial recall it would not be appropriate to elect a successor, because we already have one.

Article X, Section 9 of the state Constitution tells us that the lieutenant governor "shall become Governor when a vacancy occurs in the office of Governor." That is what the lieutenant governor is elected to do. To say that the lieutenant governor steps into the governor's seat if the governor dies, or resigns, or becomes disabled, or is impeached, but not when he is otherwise removed from office, would be anomalous.

These are formidable arguments, and they are pending before the California Supreme Court in two petitions, one filed by James and Louise Frankel, the other by Andrew C. Byrnes and Barry Keene, the latter a former state legislator who wrote the disputed language in a 1974 constitutional amendment. The court has ordered the secretary of state to respond to both petitions this week, with possible oral arguments to follow.

Let's hope the decision is in favor of sane and stable governance.

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