Iowa Attorney General Tom Miller announced today that he believes Lieutenant Governor Kim Reynolds will become the governor, and not merely “acting governor,” once Governor Terry Branstad resigns to become U.S. ambassador to China. However, in the same 23-page opinion (enclosed in full below), Miller determined that under Iowa’s constitution, Reynolds will not have the authority to appoint a new lieutenant governor once she is sworn in.

Reynolds has been vetting candidates to take her place for months, as staff in the governor’s office insisted she will have the right to appoint a new lieutenant governor. Miller’s office had indicated in December that the attorney general agreed with the Branstad administration’s view on the coming transfer of power, despite language in the Iowa Constitution stating that the governor’s powers “shall devolve upon the Lieutenant Governor” in the event of a vacancy, and calling for the Iowa Senate president to be next in line if the lieutenant governor proves incapable of “performing the duties pertaining to the office of governor.” At the time, Miller provided no legal analysis, but his office released a 1923 Iowa attorney general’s opinion, which you can read here.

Three months ago, independent State Senator David Johnson exercised his right to request a formal opinion from Miller on nine questions about the succession. He asked Miller to produce the opinion “on an expedited basis” and specifically asked him not to “simply rely on the precedent of a predecessor’s 1923 opinion.”

Staff in the Attorney General’s office, led by Solicitor General Jeffrey Thompson, conducted “extensive legal and historical research” before reaching the conclusions Miller characterized as a “split decision” during today’s press conference.

Miller noted the precedent for using the title of “governor” when previous Iowa lieutenant governors exercised the governor’s powers following a vacancy. He also noted that when vice presidents have assumed the presidency, we have called those men “president” rather than “acting president.”

Miller said five factors pointed toward the conclusion that Reynolds does not have the authority to appoint a new lieutenant governor. An important one for him was language in Article IV, Section 19 of the Iowa Constitution, which spells out the succession of power from the governor to the lieutenant governor to the president of the Senate. (I’ve enclosed that passage below.) A state constitutional amendment in 1988, which provided for the lieutenant governor to be elected on a ticket with the governor, did not change the wording about the line of succession. Furthermore, Miller found, the historical record shows “The framers [of Iowa’s constitution] intended that those in the gubernatorial line of succession be elected.”

Miller also pointed to historical practice when the U.S. Constitution’s succession language mirrored the current wording of Iowa’s constitution (saying the president’s powers “shall devolve on the Vice President”). Before the 25th Amendment to the U.S. Constitution was adopted in 1967, none of the eight vice presidents who became the head of state following the death of a sitting president attempted to appoint a new vice president for the remainder of the term.

Speaking to reporters today, Miller said that as a matter of policy, he supports the idea of the new governor having the power to appoint a new lieutenant governor. But he maintained the Iowa Constitution would have to be amended to provide for that process.

Asked what would happen if the governor’s office disagrees with his legal analysis, Miller said he expects them to follow his opinion and repeatedly expressed hope that they will do so. If Reynolds proceeds with appointing a new lieutenant governor, her action “may or may not be challenged” in court. Responding to a follow-up question, Miller clarified that the Attorney General’s Office would not file that lawsuit, repeating that he hopes Reynolds will not take that course.

I am seeking feedback from attorneys on whether an ordinary Iowa voter would have standing to go to court if Reynolds disregards Miller’s conclusions about what the constitution allows. Iowa Senate President Jack Whitver would clearly have standing, since a new lieutenant governor would take his place in the line of succession. But the loyal Republican Whitver certainly would not object.

Front-runners for the lieutenant governor spot in the Reynolds administration are rumored to include State Representative Zach Nunn and State Public Defender Adam Gregg.

UPDATE: Added early reaction from the governor’s office and other political figures below. Reynolds sounds intent on ignoring Miller’s opinion.

Relevant provisions in Article IV of the Iowa Constitution, cited in Senator David Johnson’s February 1 letter to Attorney General Tom Miller:

Governor. Section 1. 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.

Vacancies. Section 10. When any office shall, from any cause, become vacant, and no mode is provided by the Constitution and laws for filling such vacancy, the Governor shall have power to fill such vacancy, by granting a commission, which shall expire at the end of the next session of the General Assembly, or at the next election by the people.

Lieutenant governor to act as governor. Section 17. In case of the death, impeachment, resignation, removal from office, or other disability of the Governor, the powers and duties of the office for the residue of the term, or until he shall be acquitted, or the disability removed, shall devolve upon the Lieutenant Governor.

Duties of lieutenant governor. Section 18. The lieutenant governor shall have the duties provided by law and those duties of the governor assigned to the lieutenant governor by the governor.

Succession to office of governor and lieutenant governor. Section 19. If there be a vacancy in the office of the governor and the lieutenant governor shall by reason of death, impeachment, resignation, removal from office, or other disability become incapable of performing the duties pertaining to the office of governor, the president of the senate shall act as governor until the vacancy is filled or the disability removed; and if the president of the senate, for any of the above causes, shall be incapable of performing the duties pertaining to the office of governor the same shall devolve upon the speaker of the house of representatives; and if the speaker of the house of representatives, for any of the above causes, shall be incapable of performing the duties of the office of governor, the justices of the supreme court shall convene the general assembly by proclamation and the general assembly shall organize by the election of a president by the senate and a speaker by the house of representatives. The general assembly shall thereupon immediately proceed to the election of a governor and lieutenant governor in joint convention.

Iowa Attorney General’s Office news release, May 1:

Lieutenant Governor to Serve as Governor, But Lacks Authority to Appoint Lieutenant, Attorney General Opinion Concludes
Formal opinion responds to request by state senator as Governor Branstad prepares to resign for ambassadorship
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.

About Attorney General Opinions
A formal attorney general opinion addresses legal questions relating to a public official’s duties by interpreting laws and offering legal guidance.

While not a legal precedent, a formal attorney general opinion is similar to one and stands until a court or later opinion overrules it or new legislation is enacted to change a statute in question. Opinions are not legally binding, but courts generally give them careful consideration and deference.

Full text of May 1 letter from Attorney General Miller to Senator Johnson.

UPDATE: I enclose the statement released by the governor’s office. Communications director Ben Hammes further clarified by e-mail, “We will examine our options moving forward but believe the law is clear that she will have the ability to appoint a new Lt. Governor.”

Gov. Branstad, Lt. Gov. Reynolds respond to Attorney General Miller’s reversal of opinion

Date:
May 01, 2017
Today, after learning of Attorney General Tom Miller’s reversal of opinion, Gov. Terry Branstad and Lt. Gov. Kim Reynolds issued the following statements, and provided both facts and background information to the public on the case for a new Lt. Governor.

Gov. Terry Branstad

“Tom Miller was crystal clear last December when he said Lt. Governor Reynolds could act upon existing law and appoint a Lt. Governor when she becomes Governor upon my resignation.

‘Our office has researched the law and consulted with the Governor’s office. We concur with the Governor’s conclusion that, upon resignation of Governor Branstad, Lt. Governor Reynolds will become Governor and will have the authority to appoint a new Lt. Governor.’ – Tom Miller’s Office, December 13, 2016.

No new facts or laws have changed since December 13, 2016. Tom Miller has allowed politics to cloud his judgment and is ignoring Iowa law. This politically motivated opinion defies common sense. Iowans expect a Governor and Lt. Governor working on their behalf. This is disappointing.”

Lt. Gov. Kim Reynolds

“In December, Attorney General Tom Miller researched the law and concurred with the Secretary of State and our office that, upon Gov. Branstad’s resignation, I become Governor and have the authority to appoint a new Lt. Governor. Since then, I’ve been moving forward with that understanding. Now, five months later, just one day before Governor Branstad testifies before the U.S. Senate Foreign Relations Committee, the Attorney General has reversed himself, but the law hasn’t changed. The law still states that as Governor, I vacate my role as Lt. Governor and am able to appoint a new Lt. Governor. 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.”

Ben Hammes, Communications Director

“The power of a Governor to appoint a new Lt. Governor was put into the law in 2009 by the democrats. That law says: ‘An appointment by the governor to fill a vacancy in the office of lieutenant governor shall be for the balance of the unexpired term.’ This bill passed unanimously by both parties and signed into law by a democrat Governor. Now, just because the democrats do not control the Governor’s office, Attorney General Miller wants to pretend like this law does not exist, and issue a non-binding opinion. Quite frankly, this is what Iowans are sick and tired of. The Attorney General should be upholding the law, not ignoring it.”

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Background Information:

Attorney General Miller now says that Lt. Gov. Reynolds will be both Governor and Lt. Governor at the same time and that Lt. Gov. Reynolds will not be able to appoint a new Lt. Governor. That defies common sense and the law.

(1) When Gov. Branstad resigns, the Iowa Constitution states that his powers will devolve upon Lt. Gov. Reynolds. Lt. Gov. Reynolds will become Governor. Attorney General Miller agrees with this conclusion.

(2) Iowa law prevents someone from holding two offices at the same time. Because Kim Reynolds will become Governor, she will automatically vacate the Office of the Lt. Governor.

(3) In 2009, the Iowa Legislature (led by democrats) passed a statute to clarify that if there is a vacancy in the Office of Lt. Governor, the Governor appoints someone to fill that vacancy. That law is clear: “An appointment by the governor to fill a vacancy in the office of lieutenant governor shall be for the balance of the unexpired term.”

(4) When Terry Branstad resigns, Kim Reynolds becomes Governor; the Office of Lt. Governor is then vacant, and under the Iowa Code (passed unanimously by the Legislature) Gov. Reynolds appoints someone to fill that vacancy.

Similar situations have occurred before in other states. For example:

(1) In 2003, President Bush picked Utah Gov. Michael Leavitt to head the EPA. The state’s Attorney General, in a thorough legal opinion, concluded that Leavitt’s Lt. Governor became Governor and vacated the Lt. Governor’s Office. The new Governor, then, was free to appoint a new Lt. Governor (and he did).

(2) Similarly, when then-Gov. Bill Clinton became president in 1993, the Arkansas Supreme Court ruled — based upon constitutional provisions that are nearly identical to Iowa’s — that his Lt. Governor became Governor. The Office of the Lt. Governor was then vacant, and Mike Huckabee filled that vacancy mid-term.

(3) Finally, and most recently, the New York’s highest court ruled that when Gov. Elliot Spitzer resigned, Lt. Governor David Patterson became Governor, vacated the Office of Lt. Governor, and was free to appoint a new Lt. Governor.

In December 2016, Attorney General Miller agreed with this view of the law. Since then, the Constitution hasn’t changed. Neither has the Iowa Code. While Attorney General Miller’s opinion is not binding on anybody, Iowans should ask why Attorney General Miller suddenly reversed course.

SECOND UPDATE: Reynolds gave a whiny and repetitive interview to WHO-TV’s Dave Price. She kept characterizing Miller’s well-researched opinion as “political games” and kept saying she didn’t know why he changed the opinion he had provided to the governor’s office in December.

That “opinion” was essentially a one-paragraph statement. Miller explained at the May 1 press conference that he changed his mind after his staff did exhaustive legal and historical research on the subject.

Meanwhile, Iowa House Speaker and Majority Leader Chris Hagenow said in a written statement,

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. Governor 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.

A law approved by the legislature cannot supersede the Iowa Constitution. If Reynolds resigned while Branstad was still governor, the 2009 law allows him to name her successor. But the line of succession expressed in Article IV, Section 19 is clear. If state lawmakers wanted to change that, they should have approved a constitutional amendment in two successive legislatures and put it before the voters on a statewide ballot.

Reynolds will delegitimize herself if she proceeds with this power grab. Let her use her campaign funds to send her running mate all around the state. I expect Iowa leaders to follow the rule of law.

Incidentally, Reynolds told Price that she has narrowed her search for a lieutenant governor down to three names. Multiple sources believe Hagenow is on that short list, along with Nunn and Gregg.

Iowa Secretary of State Paul Pate released this statement on behalf of himself and his two immediate predecessors, Republican Matt Schultz and Democrat Michael Mauro.

Statement from Secretary Pate and former Secretaries of State regarding Attorney General’s announcement

DES MOINES – Iowa Secretary of State Paul Pate issues the following statement regarding the announcement by Attorney General Tom Miller:
“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.” – Paul Pate, Iowa Secretary of State and Commissioner of Elections

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. Former Iowa Secretary of State and Commissioner of Elections Michael Mauro proposed that provision and it was signed into law by former Secretary of State and then-Governor Chet Culver:

“I served as the Democratic Secretary of State in 2009. As Secretary of State, I proposed a commonsense change in the law that specifically says that a vacancy in the Office of Lieutenant Governor is to be filled by the Governor. The changes were accepted unanimously by both Democrats and Republicans in the Iowa Legislature and signed by Governor Culver. As Secretary of State, I prided myself in doing the right thing and implementing the law correctly, regardless of politics. I am disappointed Tom Miller is not doing the same.” – Michael Mauro, former Iowa Secretary of State and Commissioner of Elections

Former Iowa Secretary of State and Commissioner of Elections Matt Schultz concurs:
“As former Secretary of State, it is my belief that the Iowa Constitution implies that an individual should occupy the Office of Lieutenant Governor, even when that vacancy is created after the Lieutenant Governor assumes the Office of Governor due to a resignation. This is made clear in Iowa Code section 69.8. I believe the law supports Kim Reynolds appointing an individual to the position of Lieutenant Governor after she is sworn in as Governor of this great state.” – Matt Schultz, former Iowa Secretary of State and Commissioner of Elections

It’s disappointing but not surprising that the entire Iowa Republican political class (joined by Mauro, who has served in the Branstad administration as labor commissioner since 2011) decided to throw a temper tantrum and accuse Miller of having partisan motives, rather than engage with his reasoning. No one in the Iowa GOP will acknowledge the historical precedent: no previous lieutenant governor who assumed the governor’s powers attempted to name a new lieutenant governor. No vice president who assumed the president’s powers before the 25th Amendment attempted to name a new vice president. That wasn’t by accident.

Democrats didn’t ask for this opinion. Independent Senator Johnson did. Today he expressed his gratitude “for the many hours devoted to researching the constitutional issues at hand,” adding, “I also applaud General Miller’s commitment to getting it right.”

As for costing taxpayers money, Reynolds can decide whether to defy Miller’s opinion and force the state to defend certain litigation. Ryan Foley reported for the Associated Press,

[A]ttorney Gary Dickey, who served as general counsel for Gov. Tom Vilsack, said Miller arrived at the correct decision under the Constitution and “very persuasive” historical precedent. He said any appointment by Reynolds would likely be challenged by him or other attorneys who will be watching to ensure the Constitution is followed.

I sought further comment from Dickey about who might have standing to challenge a move by Reynolds to appoint a new lieutenant governor. He replied by e-mail,

Standing: In Turner v. Iowa State Highway Commission, 186 N.W.2d 141, 147-48 (Iowa 1971), the Iowa Supreme Court recognized that citizens and taxpayers have standing to bring an action to restrain the illegal use of funds. Assuming the LG draws a salary, has any overhead expenses, security detail, travel expenditures, etc. I think any taxpayer would have standing. It’s the same theory that allows an ordinary taxpayer to challenge an item-veto. Rants v. Vilsack, 684 N.W.2d 193, 198 (Iowa 2004).

Another attorney suggested to me that a “Quo Warranto action” could be used to get around the standing question. Under the Iowa Rules of Civil Procedure, Rule 1.301, “A civil action in the nature of quo warranto […] may be brought in the name of the state against any defendant who is any of the following: (1) Unlawfully holding or exercising any public office or franchise in Iowa […]. Rule 1.1302(2) goes on to state that “the citizen may bring the action and prosecute it to completion” if public officials refuse to go to court.

Dickey’s take on that scenario was that a Quo Warranto action would be feasible, but “the path of least resistance would be to file a direct cause of action under the Iowa Constitution seeking injunctive relief (and attorney fees). That’s how I would file it.”

Finally, I asked what might happen if Kim Reynolds formally resigns the lieutenant governor’s office after being sworn in as governor. Wouldn’t that create a vacancy in the lieutenant governor’s office, which the 2009 law allows the governor to fill? Dickey replied,

I take the position under the plain text of Article IV, section 17, that Lt. Gov. assumes powers and duties of the office of Governor only by virtue of her position as Lt. Gov. If she resigns as Lt. Gov, she no longer has the powers and duties of the office of Governor. And, then [Iowa Senate President] Jack Whitver assumes the powers and duties of the office of the Governor.