IOWA AG OPINION: Lt. Gov. to serve as governor, but lacks authority to appoint lieutenant
SUBMITTED (KTIV) -
Iowa's attorney general says Lt. Gov. Kim Reynolds will not have the authority to appoint a lieutenant governor when she replaces Gov. Terry Branstad.
Reynolds is preparing to become governor when Branstad resigns to become U.S. ambassador to China.
Monday, Attorney General Tom Miller released his legal opinion that Reynolds will assume all the duties of an elected governor through January 2019, but won't have the power to appoint a new lieutenant governor. "There is this devolvement of powers into the lieutenant governor," said Tom Miller, (D) Iowa Attorney General. "The lieutenant governor exercises those powers sort of from that position. So, there's no vacancy, and no ability to appoint a replacement."
This is a reversal for Miller. In December, Miller's office said it agreed with Reynolds and Branstad that she would have the power to choose a new lieutenant governor.
The reversal sparked accusations that Miller, who's a Democrat, had politicized the decision over the succession of the Republican Reynolds as governor. Governor Branstad said he was disappointed with Miller's decision saying, "Tom Miller has allowed politics to cloud his judgment and is ignoring Iowa law... this politically motivated opinion defies common sense."
Miller disagrees. "What does the law say," Miller said. "Not what politics says, not what policy says, what does the law say. This is the best reading we have of the law. It's a split decision that we believe is right."
In a statement, Reynolds said she would move forward, and appoint a new lieutenant governor once she becomes governor. She cited a state law, she says, allows the governor to fill a vacancy in the office of lieutenant governor.
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.