Hobbs not inclined to play governor when Ducey’s away

Carmen Forman//December 7, 2018

Hobbs not inclined to play governor when Ducey’s away

Carmen Forman//December 7, 2018

Secretary of State-elect Katie Hobbs (Photo by Katie Campbell/Arizona Capitol Times)
Secretary of State-elect Katie Hobbs (Photo by Katie Campbell/Arizona Capitol Times)

When Doug Ducey crosses state lines, it will be “Governor Katie Hobbs” to you.

Much has been said about how Hobbs’ election to secretary of state catapulted a Democrat to the front of Arizona’s line of succession. But a lesser-known provision of the state Constitution also stipulates Hobbs will serve as acting governor anytime Ducey leaves Arizona.

That means, among other gubernatorial powers, Hobbs will have the ability to sign executive orders, and hire and fire state employees when Ducey is absent.

At least, in theory.

No secretary of state in modern history has stirred controversy by abusing gubernatorial powers when serving as Arizona’s acting governor.

But it’s not unheard of. In 1928, Secretary of State James Kerby fired a member of the Arizona Industrial Commission when Gov. George W.P. Hunt was in Washington, D.C.

Hunt was livid, according to a biography of the governor written by David Berman, a professor at Arizona State University.

The rumor at the time was that Kerby fired Henry McCluskey, a friend of Hunt’s, to get back at the governor for reneging on a promise not to seek re-election. Supposedly, Hunt had told Kerby months earlier he would not run again, prompting Kerby to jump into the governor’s race.

Later that year, the Arizona Supreme Court upheld Kerby’s ouster of McCluskey because he was neglecting his work on the Industrial Commission and because he was appointed as a commissioner on the Colorado River Commission, which was a violation of state law that stipulated members of the Industrial Commission could not profit from holding another office.

Hunt and Kerby were both Democrats, and still had a tiff. Hobbs and Ducey are from opposing parties, which could create more friction between the state’s top two elected officials.

The Arizona Constitution states that when the governor leaves the state, “the power and duties of the office shall devolve upon the same person as in case of vacancy.” That person is the secretary of state.

If the secretary of state is also out of Arizona or unable to fill in as acting governor, then the duties carry down the line of succession to the state’s attorney general. Next in line is the state treasurer followed by the superintendent of public instruction.

Ducey left Arizona at least twice in the past week, according to the governor’s public schedule, meaning Secretary of State Michele Reagan was technically in charge. He visited Mexico for a trade summit and attended the inauguration of the country’s new president Andrés Manuel López Obrador. He also attended funeral services for former President George H.W. Bush in Washington, D.C.

Ducey, who maintains he is still the state’s top brass even when he’s traveling, dismissed the idea that Hobbs will do more than serve as a placeholder when he is out of Arizona.

Ducey told the Arizona Capitol Times that he forged a strong relationship with Hobbs when she was in the Legislature, so he trusts her not to co-opt his job when he’s gone.

“Part of any relationship is built on trust and confidence, so I’m hopeful that soon-to-be Secretary Hobbs and I can work closely and that it won’t be those types of game-playing or unpleasant surprises,” Ducey said.

Similarly, Hobbs has not expressed any interest in co-opting the governor’s duties when he is gone.

In a press conference just days after her victory in the secretary of state’s race, Hobbs said the constitutional provision crafted in 1912 was written long before email, cell phones and other technological advances that help keep the governor informed while he’s traveling.

Hobbs also said she thinks it’s unlikely Ducey will leave much of anything for her to act on in his stead.

“The governor is not going to leave me when there’s pressing policy that he feels strongly about,” she said.

Attorney General Mark Brnovich raised the question of how much power the acting governor really has when he filled in for Ducey for a day in 2015. Brnovich jokingly asked his Twitter followers what he should do as governor when Ducey was on vacation in California and Reagan was out of town at a conference.

Upon realizing he may have struck a nerve, Brnovich walked back his joke, saying he had full confidence in Ducey to manage Arizona while across state lines.

Reagan and previous secretaries of state have been called on to sign emergency legislation or other urgent documents while the state’s governor has been absent. Typically, the governor is aware of the situation and gives his or her blessing for the secretary of state to act.

The 1928 Arizona Supreme Court case involving Kerby and Hunt, though it dealt with the fallout from Arizona’s secretary of state serving as acting governor, did not directly address the amount of power bestowed to an acting governor.

But high courts in other states have addressed the issue.

In 1979, California’s Supreme Court ruled the state’s lieutenant governor has complete gubernatorial power when the governor leaves the state after former Republican Lt. Gov. Mike Curb made appointments, signed bills and created commissions while former Democratic Gov. Jerry Brown campaigned for president. The court case stemmed from when Brown tried to withdraw one of Curb’s judicial appointments.

Curb boasts of making 431 appointments and signing at least 30 proclamations and bills while serving as acting governor.

But in 1991, the Missouri Supreme Court ruled opposite of California that the lieutenant governor does not become acting governor on the “temporary casual absence” of the elected governor.