In the past, the deputy attorney general automatically becomes the acting attorney general in the absence of his predecessor under the succession rule.
The governor’s appointed acting AG can also assume the post without the Senate’s confirmation.
However, a new law was enacted requiring the governor’s nomination and the Senate’s confirmation before a person is allowed to assume the acting AG position.
In his legal analysis, Buckingham said there is no significant provision in the Commonwealth Constitution for the appointment of an “acting” attorney general and the Senate has the exclusive authority to confirm political appointees.
He said under the applicable laws, the appointed AG’s name must be submitted to the Senate within 30 days of the appointment.
If the appointment is not confirmed “within 90 consecutive calendar days from the date the person was appointed, the appointment is deemed rejected and shall automatically terminate, the position shall become vacant, and the person nominated shall not be renominated.”
“Furthermore,” Buckingham said, “there is no explicit constitutional or statutory authority for the proposition that a duly appointed and confirmed attorney general can, by contract, appoint an ‘acting’ attorney general who will serve during periods when the attorney general has resigned, or is otherwise permanently unable to fulfill the duties of office,” he added.
Then-Deputy Attorney General Gregory Baka served as acting AG from Sept. 2008 through August of this year.
Then-AG Matthew Gregory resigned in Sept. 2008.
The governor only filled the AG’s position in August this year when he nominated Buckingham.
Buckingham said in the event that no duly confirmed AG exists, all duties and functions of the Office of the Attorney General will remain, particularly in prosecuting criminal activities.
“The people cannot and will not lose the power to prosecute these crimes,” he said.
