AG rules Reynolds can’t pick lieutenant governor

Source: Bh Jason Noble, Des Moines Register • Posted: Tuesday, May 2, 2017

When Iowa’s governor leaves office, the lieutenant governor assumes all the powers and duties of the governor but does not have the legal authority to appoint a new lieutenant, the Iowa Attorney General’s Office said Monday.

That finding, delivered by Attorney General Tom Miller in a formal legal opinion, provides the most authoritative interpretation yet on a timely constitutional dispute. But it also challenges plans now underway in the Iowa governor’s office — and could spark a political firefight and high-stakes legal battle in the weeks ahead.

The state’s gubernatorial succession process is expected to grind into action within weeks, as the U.S. Senate considers Gov. Terry Branstad’s nomination as ambassador to China.

Should Branstad win confirmation, Lt. Gov. Kim Reynolds would succeed him as the state’s chief executive. For months, the governor’s office has been planning a succession that includes the appointment of a new lieutenant governor, based in part on a statement from Miller’s office last December concluding that Reynolds would have the authority to do so.

Monday’s opinion — released the day before Branstad sits for a Senate confirmation hearing — represents a sharp reversal from that view.

The 23-page legal paper argues that based on the language and intent of the Iowa Constitution and precedents found in other states and at the federal level, the powers of governor will “devolve” onto Reynolds, essentially meaning that she will hold both offices simultaneously and thus cannot appoint a new lieutenant because there is no vacancy in that office.

Branstad and Reynolds are Republicans; Miller is a Democrat.

If Reynolds were to heed the attorney general’s advice, no one would hold the title of lieutenant governor in Iowa until after the 2018 gubernatorial election.

Miller, in a press conference on Monday, couched the opinion as a split decision, finding on the one hand that Reynolds would assume all the powers and duties of governor while on the other that she could not pick a lieutenant.

“There’s a clear historic practice that there is no replacement of a lieutenant governor or vice president absent a constitutional provision,” he said.

Officials in the governor’s office and Republicans around the state reacted with immediate disdain, rejecting the attorney general’s finding, questioning the legal logic supporting it and highlighting the earlier statement from his office’s finding that Reynolds did have the authority to appoint a successor.

In a statement, Reynolds suggested she would disregard the opinion and move forward with appointing a lieutenant once she becomes governor, citing a state law that allows the governor to fill vacancies in that office.

“With the law on our side we will move forward with his first conclusion as we examine our options in light of Tom Miller’s reversal,” Reynolds said.

The question arose when Branstad was nominated earlier this year as ambassador to China by President Donald Trump. Although the process has unfolded slowly, Branstad faces a confirmation hearing before the U.S. Senate Foreign Relations Committee on Tuesday and is widely expected to win confirmation by the full Senate perhaps by the end of the month.

Monday’s opinion was in the works for months, following a request last Februaryfrom state Sen. David Johnson, I-Ocheyedan, seeking legal clarity on the gubernatorial succession and the extent of Reynolds’ powers once she assumed the office.

Its findings, Miller said, were based not only on the language and legal meaning of the state constitution, but also a review of the debates from the convention in which the constitution was drafted, in 1857, as well as case law and opinions by attorneys general from other states.

Seven other cases as well as two legal opinions support the position taken by his office, Miller said.

In his remarks to reporters, Miller said he believed Reynolds should be able to appoint her own successor as lieutenant governor, and that he had to be convinced of the legal argument otherwise by his staff.

“I support the appointment of a lieutenant governor by the new governor as a matter of policy and as a matter of constitutional law,” he said. “I think for a variety of reasons, including continuity of the party holding the office, it’s a good idea. But it can only be done by a constitutional amendment.”

That viewpoint didn’t satisfy the governor’s office and other Iowa Republicans, who accused Miller of political gamesmanship and flip-flopping from his December ruling.

“Tom Miller today twisted himself into a pretzel in attempting to explain his stunning reversal,” Iowa GOP Chairman Jeff Kaufmann said in a statement. “His 23-page clean-up document is a head-scratching display of pure political partisanship.”

Republicans questioned Miller’s claim that Reynolds would hold both the offices of governor and lieutenant governor simultaneously and pointed to the existing state law allowing the governor to appoint a new lieutenant in the event of a vacancy.

“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,” Iowa Secretary of State Paul Pate, a Republican, said in a statement. “There is sufficient legal authority for Governor Reynolds to fill the vacancy of lieutenant governor.”

Miller addressed the point in his press conference, arguing that the line of succession outlined in the Constitution cannot be altered by state law. Rather, he said, it would take a constitutional amendment to allow a lieutenant governor who becomes governor to appoint a new lieutenant.

He also spoke to his office’s reversal of opinion from December, when it released a statement saying it “concurred” with the view that Reynolds would have the authority to name a new lieutenant governor.

Miller said the office made that judgment based on a “quick look at the law” and acknowledged it was informed at least in part by his personal agreement with the policy.

Now, he said, “We’ve taken much deeper look at the law, what’s happened in other states and what’s happened in the federal government and come to this conclusion.”

The opinion offered by the Attorney General’s Office on Monday does not have the force of law or precedent, but could be used as evidence in a legal challenge should Reynolds move to appoint a lieutenant, Miller said.

If that were to happen, the Attorney General’s Office would essentially stay out of the fight. It would not challenge the governor’s office, Miller said, nor would it defend the governor’s office in a lawsuit brought by someone else.

One tough question should Reynolds appoint a lieutenant governor is who would have legal standing to challenge her. Miller mused that Senate President Jack Whitver and House Speaker Linda Upmeyer — the elected officials next in the line of gubernatorial succession behind the lieutenant governor — would have standing, although he acknowledged that as Republicans they’re unlikely to do so.

(Indeed, Whitver and Upmeyer quickly put out statements on Monday afternoon faulting the Miller opinion and voicing support for Reynolds’ right to appoint a lieutenant.)

Miller expressed hope that Reynolds simply would not test the legal question further by making an appointment.

“We would hope she wouldn’t because we all have the obligation to follow the law,” he said. “The best statement of the law currently is an attorney general’s opinion. We think it’s thoroughly done, impartially done and is the best result that we think is available.”