Hastings Constitutional Law Quarterly Volume 7 Article 7 Number 3 Spring 1980 1-1-1980 In Re Governorship: Curbing Mike Curb-- Constitutionally David B. Lloyd Follow this and additional works at: https://repository.uchastings.edu/ hastings_constitutional_law_quaterly Part of the Constitutional Law Commons Recommended Citation David B. Lloyd, In Re Governorship: Curbing Mike Curb--Constitutionally, 7 Hastings Const. L.Q. 831 (1980). Available at: https://repository.uchastings.edu/hastings_constitutional_law_quaterly/vol7/iss3/7 This Note is brought to you for free and open access by the Law Journals at UC Hastings Scholarship Repository. It has been accepted for inclusion in Hastings Constitutional Law Quarterly by an authorized editor of UC Hastings Scholarship Repository. For more information, please contact [email protected]. IN RE GOVERNORSHIP: CURBING MIKE CURB-CONSTITUTIONALLY By David B. Lloyd* Upon returning from a trip to the east coast in March 1979, Gov- ernor Edmund G. Brown, Jr. was presented with a fair accompli by Lieutenant Governor Mike Curb, in the form of a judicial appointment to the California Court of Appeal. Political ruminations and rumblings dominated the spring, blossoming into a legal brouhaha in the summer, finally culminating with the California Supreme Court decision last winter, In re Governorship.1 This intragovernmental branch dispute is unique in the state's his- tory, due in part to the fact that, for the first time in almost one-hun- dred years, the two leaders of the executive branch of the government are from different political parties.2 The issues presented to the California Supreme Court in this case were narrowly framed: (1) Does the lieutenant governor have the power, under article V, section 10 of the California Constitution, to make a judicial appointment when the governor is absent from the state? (2) If such power does exist, can the governor validly withdraw such an appointment upon his return to the state?3 But underlying these two problems lurks the broader, and much more important issue ofjust who governs the state when the governor is physically outside its boundaries. The supreme court, in a decision by Justice Wiley Manuel,4 ruled that the lieutenant governor has authority to exercise gubernatorial powers of appointment to the appellate court while the governor is physically absent from the state and that the governor has the authority * B.S., 1978, University of Santa Clara; member second year class. 1. 26 Cal. 3d 110, 603 P.2d 1357, 160 Cal. Rptr. 760 (1979). The opinion was a consoli- dation of Brown v. Curb, in which the Governor petitioned for writs of mandate and prohi- bition and for declaratory relief, and In re Governorship, filed by the State Commission on the Governorship for determination of questions under article V, section 10 of the California Constitution. 2. In the gubernatorial election of 1886, Washington Bartlett, a Democrat, won the governorship, while Robert Waterman, a Republican, won the lieutenant governorship. Bartlett died after eight months in office, and Waterman served out the remainder of his term. 1 J. KALLENBACH & S. KALLENBACH, AMERICAN STATE GOVERNORS, 1776-1976 at 69 (1977). 3. 26 Cal. 3d at 113, 603 P.2d at 1359, 160 Cal. Rptr. at 762. 4. 1d. [831] HASTINGS CONSTITUTIONAL LAW QUARTERLY [Vol 7:831 to withdraw the appointment at any time prior to the moment its con- firmation becomes effective. 5 This note will assess the respective positions of the Governor and the Lieutenant Governor in their law suit before the supreme court. Though the legal and political ramifications of this controversy may, at first blush, appear peculiar to California, the issues presented here tran- scend state boundaries. Thus, this note will also briefly examine the methods used by other states in dealing with the problem, along with several recent proposals designed to streamline the executive bureauracy. It will conclude, contrary to the judgment of the Califor- nia Supreme Court that the Governor's absence from the state consti- tutes a "disability" only when it is infact disabling; that is, when the governor is outside the state and unable to act in an emergency situa- tion6 that calls for his immediate attention. Thus, unless a governor is does not author- so "disabled," a mere physical absence from the state 7 ize the lieutenant governor to exercise full gubernatorial power. I. Statement of Facts The seeds of dispute were sown in the gubernatorial election of 1978, when Edmund G. Brown, Jr. defeated his Republican challenger, and Mike Curb defeated his Democratic opponent. The political hon- eymoon between the two was short-lived and it was only a question of time before a serious controversy would blossom." On December 31, 1978, Presiding Justice Parker Wood retired from the California Court of Appeal.9 Two weeks later, Brown initi- ated the process of appointment to fill the vacancy by sending the names of eleven candidates to the Chairperson of the Los Angeles County Bar Association's Judicial Appointments Committee for evalu- ation. The Committee's evaluation of the candidates was received by the Governor on March 12, 1979. Ten days later, Brown submitted the name of Bernard Jefferson, associate justice of the court of appeal, to the Board of Governors of the State Bar for consideration, along with the name of a replacement to fill Jefferson's old post. 10 5. Id. 6. An "emergency situation" could be defined as a sudden, generally unexpected oc- currence or set of circumstances. 7. This power includes all responsibility, constitutional and statutory, imposed on the governor. See generally CAL. CONST. art. V. 8. Brown's presidential ambitions were widely known at the time, and there was no question that he would frequently be absent from the state in the future. Curb, buoyed by his successful first attempt at public office, was also seen as having high ambitions, and it was doubtful that he would remain idle if given the opportunity to exercise gubernatorial power during the Governor's absence. 9. Second Appellate District, Division One. 10. Both these submissions were made in accordance with an arrangement, traditional Spring 1980] CURBING MIKE CURB Brown left Los Angeles International Airport at 10:00 a.m. on March 26, 1979, bound for Washington, D.C., to testify on behalf of the State of California before the Energy and Natural Resources Commit- tee of the United States Senate, at the invitation of Senator Henry Jack- son. Brown was absent from the state for approximately forty hours, returning to Los Angeles on March 28 at 2:11 a.m. During Brown's absence, on March 27 at about 3:00 p.m., Sheldon Lytton, chief assis- tant to Lieutenant Governor Curb, called Gray Davis, Brown's execu- tive secretary, informing him of Curb's intention to appoint Judge Armand Arabian of the Los Angeles Superior Court to the vacancy on the court of appeal. Davis informed Lytton that Brown intended to appoint Jefferson to that vacancy, that Arabian's name had not been submitted to the State Bar for evaluation and thus was in violation of the traditional arrangement between the State Bar and the Governor, and that Arabian's appointment would be contrary to the Governor's expressed intentions. Davis also warned Lytton that, should Curb ap- point Arabian, Brown would withdraw the appointment upon re- turning to the state. Shortly afterwards, Lytton, in a second phone call to Davis, informed him that notwithstanding Brown's opposition, Curb would proceed with the Arabian appointment. " Later that same day, by letter to the Commission on Judicial Appointments,' 2 Curb ap- pointed' 3 Arabian to the vacancy on the California Court of Appeal. Upon returning to the state on March 28, Brown telegrammed the Commission and withdrew Curb's appointment of Arabian.4 Two days later, the Governor appointed Jefferson to the post.' In response, Curb sent a letter to the Commission on April 2, as- in California since the administration of Governor Earl Warren, whereby the governor sub- mits to the Board of Governors of the State Bar the names of prospective appointees to the court of appeal for evaluation prior to their submission to the Commission on Judicial Ap- pointments for confirmation. 11. Such interexecutive disagreements apparently were common. In September 1979, for example, while Brown was campaigning in Texas, Curb phoned Brown and his staff several times demanding to know Brown's intention on pending tax relief bills. If they were not signed, Curb warned, he would storm the Governor's office and act on the bills himself. The Governor's executive secretary responded that there was no way Curb would have been given the bills to sign. San Francisco Chronicle, Sept. 29, 1979, at 34, col. 6. 12. An appointment by the governor to fill a vacancy in the court of appeal "is effective when confirmed by the Commission on Judicial Appointments." CAL. CONST. art. VI, § 16(d). The Commission consists of the Chief Justice, the Attorney General and, when the appointment to be considered is to a court of appeal vacancy, the senior presiding justice of the affected court. Id., art. VI, § 7. 13. The "appointment" in this case was actually a nomination. The appointee would not be vested with the right to office until confirmed by the Commission and given his com- mission by the Governor. 14. Although the Board of Governors of the State Bar had not yet completed its evalua- tion of Jeffersop, it advised Brown that, in light of Curb's actions, it did not object to Brown proceeding with the Jefferson appointment. HASTINGS CONSTITUTIONAL LAW QUARTERLY [Vol. 7:831 serting his belief that his earlier appointment of Arabian was a valid one, not subject to rescission by Governor Brown without the ap- pointee's consent.15 Two weeks later, Chief Justice Rose Bird, acting in her capacity as chairperson of the Commission, requested assistance from Brown and Curb with respect to their conflicting appointments.