DES MOINES — Attorney General Tom Miller Monday issued a formal legal opinion stating that if a governor resigns, the lieutenant governor becomes governor for all intents and purposes, but does not have legal authority to appoint a new lieutenant governor.
Sen. David Johnson, I-Ocheyedan, requested the opinion following Governor Terry Branstad’s announcement that, if confirmed by the U.S. Senate, he will serve as U.S. ambassador to China.
The 23-page opinion, following extensive legal and historical research, concludes, “…the powers and duties of the office of Governor fall upon the lieutenant governor.” The conclusion is based on an Iowa Constitution provision addressing a governor’s resignation, which states, “…the powers and duties of the office…shall devolve upon the lieutenant governor.” Under that provision, the opinion adds, “The lieutenant governor takes on this authority because she is lieutenant governor.”
Significantly, according to Miller, Article IV, section 1 provides that “The supreme executive power of this state shall be vested in a chief magistrate, who shall be styled the governor of the state of Iowa.”
While the “the lieutenant governor becomes governor and has the title of Governor,” the opinion further adds that that person does not have constitutional authority to appoint a new lieutenant governor. “In other words, upon a governor’s resignation, the lieutenant governor will hold both the offices of Governor and Lieutenant Governor. There is no vacancy to be filled,” according to the opinion.
“This opinion conveys that, in a sense, the two offices merge,” Miller said. “This is consistent with numerous cases in other states that addressed this question,” Miller added. “It is also consistent with a close reading of the Iowa governor’s succession provision—Article IV, section 19 of the Iowa Constitution, which establishes a precise order of gubernatorial succession without providing for the appointment of a lieutenant governor.”
Miller’s opinion notes that in all four previous instances when an Iowa governor resigned or died while in office, the lieutenant governor was always considered governor, but never appointed or named a new lieutenant governor. The opinion also concludes, “The framers intended that those in the gubernatorial line of succession be elected.”
At the federal level, prior to Congress amending the U.S. Constitution in 1967 to establish that the vice president becomes president and grants the president authority to appoint a new vice president with Congressional approval, no vice president who assumed the powers and duties of a president who died while in office appointed a new vice president.
The formal opinion departs from a public statement Miller’s office issued in December, following an informal legal review in response to media inquiries, which stated the office concurred with “Governor Branstad’s conclusion that…in her capacity as Governor, Governor Reynolds will have the authority to appoint a new lieutenant governor.”
The December statement was based, in part, on an Iowa Code section addressing vacancies of office holders. Miller’s formal opinion concludes this statute does not apply when a governor resigns and the powers and duties devolve upon the lieutenant governor.
House leadership responded to Attorney General Miller’s gubernatorial transition opinion:
House Speaker Linda Upmeyer (R-Clear Lake) and House Majority Leader Chris Hagenow (R-Windsor Heights) issued the following joint statement in response to Attorney General Tom Miller’s formal opinion on the gubernatorial transition:
“In 2009, we both voted to give the Governor the authority to appoint a new Lieutenant Governor in the event of a vacancy. Attorney General Miller confirmed in December that Lt. Gov. Reynolds would have the authority to appoint her successor. The law was clear when he made that first announcement, and it is clear today. A new Governor should hold the same powers and duties that their predecessor held.
It is disappointing that the Attorney General has chosen to bring politics into this transition which will ultimately cost Iowans more time and money. This is clearly a partisan move to muddy the waters in an attempt to delegitimize Lt. Gov. Reynolds as she becomes our next Governor. Iowans expect better.”
“It is my position, as the State Commissioner of Elections, that both the Iowa Constitution and the Iowa Code agree that Kim Reynolds should be allowed to select a person to fill the vacancy in the Office of Lieutenant Governor upon her ascendancy to the Governor’s Office. When this potential vacancy was announced, the Iowa Secretary of State’s Office reached an opinion that concurred with the Attorney General’s Office and the Office of the Governor.
“The new opinion from Attorney General Tom Miller is confusing and unnecessary since Iowa Code § 69.8 allows a governor to appoint a Lieutenant Governor in case of a vacancy. There is sufficient legal authority for Governor Reynolds to fill the vacancy of Lieutenant Governor. I believe Attorney General Miller had this correct in his first analysis in December. Nothing in the Iowa Constitution, nor Iowa Code, has changed since then that would affect this legal authority.”
In 2009, the Iowa Legislature passed a statute to clarify that if there is a vacancy in the Office of the Lieutenant Governor, the Governor has the authority to fill that vacancy.
China owns some pork plants in Iowa – after he retires maybe he can manage one. I do like old terry but you know like all politicians – well you know $$$$$$$$.