It didn't take long after Gov. Arnold Schwarzenegger's office conveyed its legal strategy in the Abel Maldonado confirmation case Thursday for Capitol insiders to dig into the 156-word constitutional provision governing such things and the 9,463-word California Supreme Court decision from 1988.

But what many may not have known is the author of the constitutional provision in 1976 was none other than state Treasurer Bill Lockyer, then a 35-year-old Democratic assemblyman from the East Bay in his third year in office.

The governor's legal aides argue that because the Assembly did not get a majority of 41 votes on either side of the confirmation question (there were 37 votes for Maldonado and 35 against), then no action occurred. That, they say, triggers the second sentence of Lockyer's handiwork :

"In the event the nominee is neither confirmed nor refused confirmation by both the Senate and the Assembly within 90 days of the submission of the nomination, the nominee shall take office as if he or she had been confirmed by a majority of the Senate and Assembly..."

Assembly Democrats disagree, of course, arguing that if something (a bill, a motion, a confirmation) -- doesn't get a 41-vote majority, then action has occurred -- it is rejected. They point to Lockyer's first sentence, the words in bold-face in particular:

"Whenever there is a vacancy ...the Governor shall nominate a person to fill the vacancy who shall take office upon confirmation by a majority of the membership of the Senate and a majority of the membership of the Assembly and who shall hold office for the balance of the unexpired term."

Lockyer likely prefers to not jump headfirst into this fight, but as the author of the legal wording in question, he issued a statement to The Bee via e-mail today that sides with the Assembly version.

"The whole point of that second sentence was to address the pocket veto situation," he wrote. "At the time, people were asking, 'What happens if the Legislature does nothing?' So we put that clause in to make sure that if the Legislature did nothing at all, the person would take office. The first sentence sets the primary rule - a nominee takes office if they are confirmed by a majority of each house. It's settled law that when the Legislature does act, when it does vote on whether to confirm, a majority of each house must vote yes for the nominee to take office. Any other interpretation renders the primary rule meaningless."

Who knows if Lockyer's view will prevail? But if the mess ends up in court, one thing is certain: several trial lawyers will be employed fighting it out.