Will Kim Reynolds become Iowa governor, or merely "acting governor"?

Lieutenant Governor Kim Reynolds told Iowa reporters this morning that she expects to become governor after Terry Branstad steps down and will appoint someone else as lieutenant governor. At the same press conference, Branstad said the Iowa Constitution and state law are “pretty clear” that the lieutenant governor becomes the governor after the governor resigns.

However, a close reading of Iowa Constitution Article IV, Section 17 leaves doubt about whether Reynolds will become governor. The text states that the “powers and duties” of the governor’s office “shall devolve upon the Lieutenant Governor” in the event of a vacancy. That language differs from the U.S. Constitution’s directive that “the Vice President shall become President” in the event of a vacancy and “shall nominate a Vice President” subsequently.

The four previous times Iowa governors left before the end of their terms, their successors were called governor but did not appoint new lieutenant governors. Reynolds will certainly exercise the powers of the governor, but under the state constitution, she may do so from her current position and remain unable to name a likely 2018 running mate as lieutenant governor.

Look closely at Article IV, Section 17 of the Iowa Constitution:

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.

Jason Noble Brianne Pfannenstiel reported last week for the Des Moines Register,

Geoff Greenwood, communications director for the Office of the Attorney General, said his office is looking at Section 4 of the Iowa Constitution, which outlines a transition of power following the death, impeachment or resignation of the governor. That section says Reynolds assumes the responsibilities of the governor but does not, in title, become governor. In that case, there may be no vacant lieutenant governor position to fill.

“We’re going to have to review this and confer with the governor’s office,” Greenwood said.

State officials have also looked at Iowa Code Section 69.8, which says the governor has the power to appoint a new lieutenant governor if the position becomes vacant. If Reynolds were to become governor, rather than simply “acting governor,” she could fill that vacancy.

Branstad spokesman Ben Hammes said the governor’s office is reviewing the issue and “plans to release more information on the transition in the days and weeks ahead.”

This morning’s comments from Branstad and Reynolds indicate that the governor’s staff have decided Reynolds will become governor. But their confidence looks premature. At this writing, the Iowa Attorney General’s office has issued no statement on the matter. I am seeking comment on when Attorney General Tom Miller will reach his conclusions.

Iowa Code 69.8 on filling vacancies states, “An appointment by the governor to fill a vacancy in the office of lieutenant governor shall be for the balance of the unexpired term.” Whether Reynolds will be governor has yet to be determined.

Mark Lambert is an attorney and former Iowa Utilities Board member who served as a state administrative law judge for several years. He commented to Bleeding Heartland that if the framers of Iowa’s constitution had intended for the lieutenant governor to become governor upon the governor’s “death, disability or resignation, they could have said that directly, and they didn’t.” He added, “everyone seems to be assuming that the Iowa Constitution is similar to the US Constitution, where it says the [vice president] becomes President. But the Iowa Constitution doesn’t say that, it has very different wording.”

Lambert noted that Massachusetts has a similar provision in its state constitution. When its governors have left office before the end of the term, most recently in 2001, the lieutenant governor has become the “acting governor.”

Finally, Lambert pointed out, the word “devolve” means “transferring political power to a lower level. It seems clear to me that Art. IV, section 17 devolves the Governor’s power to the Lt. Gov, it does not say she ascends to the Governorship.”

The four previous times an Iowa lieutenant governor assumed the governor’s powers, the lieutenant governor’s position remained vacant for the duration of the term. Those instances were shorter time spans than the nearly two years left before the next gubernatorial election.

No one attorney’s opinion can resolve this legal question, not even Miller’s or Branstad’s. Only the Iowa Supreme Court has the authority to interpret the state constitution. Before Reynolds declares herself governor and names a new lieutenant governor, the administration should seek input from the seven justices.

UPDATE: Bleeding Heartland reader Marty Ryan pointed me to the transcript of the debates on Iowa’s 1857 constitution. Relevant sections are on pages 77, 587, and 597. The original text of Article IV, Section 19, included the following language:

If the Lieutenant Governor, while acting as Governor, shall be impeached, displaced, resign, or die, or otherwise become incapable of performing the duties of the office, the President pro tempore 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 rendered incapable of performing the duties pertaining to the office of Governor, the same shall devolve upon the Speaker of the House of Representatives.

Clearly the Iowa framers envisioned that a lieutenant governor “acting as governor” would retain the title of lieutenant governor.

A 1952 amendment to the Iowa Constitution replaced the original Article IV, Section 19 language with the following:

Gubenatorial succession. SECTION 19. If there be a vacancy in the office of 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 pro tempore of the Senate shall act as Governor until the vacancy is filled or the disability removed; and if the President pro tempore 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 pro tempore 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 lawmakers who approved that amendment appear to have envisioned that a lieutenant governor would retain that title while “performing the duties pertaining to the office of Governor.”

The same section was amended another time in 1988. Relevant excerpts of the new text:

SECTION 15. The official terms of the governor and lieutenant governor shall commence on the Tuesday after the second Monday of January next after their election and shall continue until their successors are elected and qualify. The governor and lieutenant governor shall bepaid compensation and expenses as provided by law. The lieutenant governor, while acting as governor, shall be paid the compensation and expenses prescribed for the 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.

Again, a plain reading of the text suggests that the lieutenant governor will retain that title “while acting as governor.” The constitution explicitly says the lieutenant governor “shall be paid” a governor’s salary while acting as governor. If lawmakers had wanted to add that the lieutenant governor “becomes governor” in the event of a vacancy, they could have done so.

Several readers have asked what difference it makes whether Reynolds is governor or acting governor. She will still be the incumbent going into the 2018 campaign, and I doubt any Republican challenger would be able to gain additional traction by saying Reynolds is only acting governor.

Not being able to appoint a new lieutenant governor would affect Reynolds in at least two important ways. First, it would introduce much more uncertainty surrounding her choice of running mate, should she become the GOP nominee for governor in 2018.

Second, the lieutenant governor often handles public appearances that don’t fit into the governor’s schedule. So it is a logistical problem if Reynolds has no one to send to those events. Her administration will have less visibility going into the next campaign.

SECOND UPDATE: Geoff Greenwood, spokesperson for the Iowa Attorney General’s Office, commented, “Our office has researched the law and consulted with the Governor’s office. We concur with the Governor’s conclusion that, upon the resignation of Governor Branstad, Lt. Governor Reynolds will become Governor and will have the authority to appoint a new Lieutenant Governor.”

I am seeking further explanation of their legal reasoning. Three of the lieutenant governors who have been in Reynolds’ position assumed the duties of a governor for a very short time, but Joshua Newbold spent nearly a full year performing the Iowa governor’s duties during the 1870s while leaving the lieutenant governor’s position vacant. In a time when many politicians could remember the adoption of Iowa’s 1857 Constitution, it seems to have been understood that Newbold was still a lieutenant governor acting as the governor.

In any event, it appears that Reynolds will be able to appoint a new lieutenant governor unless someone files a lawsuit that eventually reaches the Iowa Supreme Court. I don’t know who would have legal standing to challenge the consensus of Miller and Branstad.

LATER UPDATE: Greenwood responded on December 13,

Notably, Iowa courts have never addressed this issue.

In all four historical cases of vacancies by Iowa governors, the lieutenant governor who succeeded the governor was viewed and regarded in all respects as the governor.

Our office carefully reviewed the Iowa Constitution.

A significant formal attorney general opinion from 1923 states that (in case of death, resignation or removal from office of the governor) the lieutenant governor becomes governor (I attached the opinion and highlighted the pertinent section on page 2).

Case law, statutory, and constitutional analyses from other states are consistent with this provision.

Finally, the Iowa Code supports this position. State law establishes that, the lieutenant governor, after taking office as governor, appoints a new lieutenant governor.

This research leads us to concur with Governor Branstad’s conclusion that, upon his resignation, Lt. Governor Reynolds will become Governor. In her capacity as Governor, Governor Reynolds will have the authority to appoint a new lieutenant governor.

The 1923 attorney general opinion on Article IV, Section 17 of the Iowa Constitution was requested to determine whether the lieutenant governor can perform the duties of the governor during the governor’s temporary absence. The section Greenwood highlighted reads as follows:

From a consideration of this article it will be observed that in case of death, resignation or removal from office of the governor, that the lieutenant governor succeeds him as governor for the residue of the term. It will further appear that when there is a temporary disability of the governor, the lieutenant governor acts in his stead during the period of time such disability continues. In the first instance, the lieutenant governor becomes governor. In the second instance he simply acts as governor during the temporary disability of his chief.

Neither this 1923 opinion nor Greenwood’s reply to my inquiry addressed the fact that Joshua Newbold performed the Iowa governor’s duties for nearly a year during the 1870s without the state of Iowa selecting a new lieutenant governor (at the time, that office was elected separately from the governor).

I don’t understand why the Attorney General’s Office would not ask the Iowa Supreme Court to provide a definitive interpretation of this part of the Iowa Constitution. Branstad doesn’t plan to resign until the U.S. Senate confirms him as ambassador to China, which will occur in spring 2017 at the earliest and possibly not until next summer.

FINAL UPDATE: Greenwood dodged my follow-up questions, responding in a December 20 e-mail, “I appreciate your additional inquiry, but I think this office has sufficiently answered the broader questions about our legal position on the succession issue.”

Sounds like what a person would say when unable provide further legal reasoning to back up a position. To my mind, the Attorney General’s Office has not “sufficiently” explained why Miller believes Reynolds will become governor, even though the current text of the Iowa Constitution refers to the lieutenant governor “acting as governor” and “performing the duties pertaining to the office of governor.”

The question is more than academic: under Article IV, Section 19 of the Iowa Constitution, the Iowa Senate president would “act as governor” if Reynolds became “incapable of performing the duties pertaining to the office of governor” sometime after Branstad left office. But if Reynolds is granted the power to appoint a new lieutenant governor, that unelected person (not the Iowa Senate president) would become governor if anything happened to Reynolds before January 2019.

I enclose below the full four-page 1923 attorney general’s opinion provided by Greenwood. (I don’t find it convincing.) The section quoted above comes from the second page.

  • When we leave it to the Supremes...

    …they will decide as you describe, IMHO, considering the fact that they have based other decisions on the placement of a comma.

    • in the Griffin v Pate voting rights case

      The Attorney General’s Office argued that it was important Iowa lawmakers left the “infamous crimes” language intact while amending the same section in 2008 to remove the word “idiot.” If they had wanted to change the “infamous crimes” language, they could have done so. They chose otherwise.

      Similarly, Iowa lawmakers who amended the constitution in the 1950s and 1980s could have introduced wording to make it explicit that the lieutenant governor becomes the governor in the event of a vacancy. They did not.

  • Succession clearly established.

    The IA Constitution’s succession clause has been invoked twice since its modern amendment. The question since 1952 has been, does “devolve” mean “take office.” There have been two Governors sworn in, as being the eligible Lt. Governor at the time of the vacancy occurring under the current Constitutional framework.

    On those grounds, this question is now settled law, and has been for at least 50+ years. For that reason, if and when Gov. Branstad resigns, any Judge would swear in Lt. Gov. Reynolds as Governor.

    This was my opinion when I was advising a sitting Governor and Lt. Governor, and remains my opinion as an attorney working in Constitutional interpretation.

    • how can it be settled law

      if it has never been considered in the Iowa courts?

    • We don't get a new governor just because the old one quits.

      If the 1923 AG opinion being relied upon were a judicial decision, the statement about the lieutenant governor becoming governor after a resignation would be dicta; not necessary to the opinion and not controlling. The issue there was the status upon temporary disability of the governor. Therefore, the opinion has no precedential value in the present circumstance.

      Any value of the opinion is further undermined by its conclusion the lt. governor would become governor upon resignation and acting governor upon disability. This conflicts with Iowa Code §7.14. That section says the successor may become governor until the disability is removed. Although this makes no sense because, once a governor, how can there be a demotion?

      The only correct part of the opinion with any bearing on present circumstances is the portion that notes words are to be given their natural and obvious meaning. How about we try that?

      Article IV, Section 15 of the constitution says “The lieutenant governor, while acting as governor, shall be paid the compensation and expenses prescribed for the governor.” That language is quite clear; “acting.”

      Article IV, Section 17 says:

      Lieutenant Governor to Act as Governor
      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.

      The section does not distinguish between resignation or disability (which shows the distinction in the 1923 opinion is incorrect). In either case, “the powers and duties of the office … shall devolve upon the lieutenant governor.”

      Nothing is said about the office passing, only the powers of the office. The natural and obvious meaning of devolve is to pass on duties and powers.

      And while titles of legislation are not conclusive, the constitution requires the subject of each statute to be expressed in the title. Applying this to the constitution itself, “Act as” becomes persuasive.

      Most telling is Article IV, Section 19 of the constitution:

      Succession to Office of Governor and Lieutenant Governor
      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.

      This shows the Constitution does not contemplate the Lt. Gov becoming Gov and a new Lt Gov being appointed. Otherwise, this section would have been unnecessary – the section 17 succession rule would apply.

      By bringing legislative leaders in to succeed the Lt. Gov who cannot perform the Gov duties, the constitution makes it pretty clear the lt. gov. stays the lt. gov. with governor powers. This is supported by the fact that the legislature elects a gov. and lt. gov. if legislator succession doesn’t work.

      Iowa Code § 69.8(2) deals with a governor appointing a lt. gov., but that is when there is a vacancy as defined in 69.2.

      Subsection (i) of 69.2, simultaneously holding two elective offices, is the only potential part of the definition that could apply to establish a vacancy. If the lt. gov. does not become the gov., there is no simultaneous office holding and no lt. gov. vacancy.

      Someone might have some fun challenging any Lt. gov. appointment by getting 24 of their closest friends together and filing a petition under Iowa Code §69.2(2).

      And to the argument “Well, we’ve always done it this way” … well, you’ve always done it wrong.

  • NOT "settled law"

    There is absolutely no way the succession clause is “settled law” when the Iowa Supreme Court has never ruled on what the language means. Government officials ignoring the plain wording of the Iowa Constitution twice in the last 50 years does not make it settled law. The word “devolve” does NOT mean “takes office.” That’s not the dictionary definition, nor the legal definition, and it would make no sense grammatically in the sentence in Art. IV, Section 17. Section 19 reinforces this, as it says if the Lt. Gov is no longer in office, the power devolves to the President of the Senate, and, if he/she is not available, the Speaker of the House “acts as Governor.” Powers devolving and acting as Governor are used interchangeably. Under the Iowa Constitution, there are only two ways to become Governor — by being elected the voters, or in extremely rare circumstances, the General Assembly can elect the Governor. Anyone else, including the Lt. Gov. become “Acting Governor” when the Governor resigns or dies. It’s clear from the text of the Constitution. Section 17 is headed by the phrase “Lieutenant Governor to act as Governor.” How much clearer could that be? The language makes no distinction whether the Lt. Gov. is acting as Governor because of a Governor’s disability, or because of death or resignation of the Governor. This is correct, and I would have given the same advice to the last two Democratic Governors and Lt. Govs (all four friends of mine). It’s simply what the Iowa Constitution says. That’s my advice as an attorney, former professor teaching constitutional law, and as a lawyer who has litigated constitutional issues in state and federal court, including getting two state statutes enjoined as unconstitutional.

  • Here's a fun one -

    More on succession. Two points re: MA. The MA constitution is explicit that vacancies – unlike Iowa – include Governors’ absence from the state, in addition to death, disability, etc. The Governor there is Chair of an elected “Executive Council” as well. So the concept of who ‘acts’ as Governor in an absence is a question which requires an answer in MA – regularly – in a way for which there is no Iowa Constitutional equivalent.

    Additionally, the IA & MA Executive designations are different. Iowa states that supreme executive power is vested in a chief magistrate, who “shall be styled the governor of the state of Iowa.” Let’s map this out. If you have the power, you are the Governor.

    Massachusetts designates the *person* first, and not the power, & thus the authority derives from that person who is in that role.

    These are two different theories of what a Governor is, and while both have the same effect in terms of a person’s authority, these are exactly the kernels of distinction which let a MA court conclude one thing & an IA court conclude something else.

    Back to Iowa. Where this gets fun is that familiar federal Constitutional provisions regarding separation of powers run through the succession clauses here. In Iowa, no one holding any “office” under IA or US law can act as Governor.

    Federally, there’s an interesting issue regarding Presidential succession, b/c “officer” has an established meaning within the executive branch (e.g., the Cabinet.) Yet, the Speaker of the House & the Senate President Pro Tem are both in the statutory line of succession. (There’s a theory that fixes this, no need to go into here.)

    There is not really a similar distinction in Iowa’s constitution. “Officer” seems to mean a) a position of trust generally, or b) something explicitly denoted in the text of the Constitution, here, the President of the IA Senate & the Speaker of the IA House.

    So – if you look at the qualifications for the Executive Branch, you can start to see that an officer in a position of trust can’t *also* be the Governor. Meaning, you can’t hold two offices at once, even if one of those offices is Acting Governor.

    In plain terms, if you are in the line of succession, and there’s a vacancy via which powers of the Governor devolve upon you, then you are constitutionally ineligible to continue in the position you had prior to the vacancy.

    My own opinion here is that the devolution here is automatic upon the vacancy – b/c succession is a constitutional component of any of successors’ offices. They don’t need to resign one office to take power as Gov. – b/c their ascension is already anticipated by the constitution. Meaning, if you’re the LG / HSenate President, and ABC happens, you’re Gov./ Acting Gov.

    Where the fun happens is that the separation of powers questions as expressed by the “officer” question means that once you ascend, you are no longer able to exercise the office you HAD. It means you’re not a Lt. Governor, Senate President, or Speaker – you are *formerly* of those offices.

    And they are gone! You can’t get them back without a little help from your friends. There is no provision for formerly disabled LG/Speaker/President of the Senate to return to those offices automatically. The legislature doesn’t let you *be a legislator* if you have some other office, either (just like the concurrent prohibition on the “officer” language re: the exec branch.) They are measuring twice and cutting once – the Constitution clearly and in multiple instances commands that unless absolutely explicit, there’s no cross-branch power allowed.

    What happens then? If the act of having the supreme executive power bounces these *officers* out of their previous office, are they sunk? Not really – but they don’t return automatically. But here’s how they can.

    1) A former Lt. Governor can return to being Lt. Governor *upon being reappointed* Lt. Governor under IA Code 69.8 by the returned Governor.

    2) The Speaker of the House and the President of the Senate are disqualified to sit as Legislators upon acting as Governor and disqualified to serve as officers while acting as Governor. The Constitution, however, leaves it up to the Chambers to elect their own officers. So – could the Iowa House of Representatives elect a *former* Speaker, who is a *former* Acting Governor, who is *not* a legislator back into office as Speaker? Yes! And the Iowa Senate can do its version of the same.

    So now you have a mechanism – complete with checks and balances – that lets all these people return to the offices they once held, provided they have the consent of someone else to do so. Automatic promotion – yes. But that’s it. The rest of it requires another step and a few more sets of eyes – something that really is very Iowan in its application.

    Cool, or?

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