State Senator David Johnson has asked Attorney General Tom Miller to provide an official opinion on whether Lieutenant Governor Kim Reynolds will have the title of governor and the authority to appoint a new lieutenant governor once Governor Terry Branstad resigns, as expected later this year.
Johnson asked Miller to answer nine specific questions regarding language in the Iowa Constitution stating that "the powers and duties of the office" of governor "shall devolve upon the Lieutenant Governor," and referring to the lieutenant governor “acting as governor” and “performing the duties pertaining to the office of governor.”
I enclose below the letter Johnson sent to Miller yesterday. Relevant passages from the Iowa Constitution appear on page 4. The nine questions Johnson wants the attorney general to answer by February 15 appear on page 5.
In December, Miller's spokesperson Geoff Greenwood said, “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.” Greenwood declined to flesh out the legal reasoning, other than to provide a four-page Iowa attorney general's opinion from 1923, which you can find at the end of this post.
Johnson's letter acknowledged the previous "informal guidance" from Miller's staff but requested "an official opinion that would carry the due weight and influence these matters warrant in all branches of government and the court of public opinion. I further ask that you do not simply rely on the precedent of a predecessor’s 1923 opinion. The issues raised below appear to some as unanswered or incorrectly answered by past formal and informal guidance by the Office of the Attorney General."
The governor's office reacted to Johnson's letter with a hostile assessment of the independent senator's motives:
Two months ago, the Iowa Attorney General and the Iowa Secretary of State gave Iowans a definitive answer that Kim Reynolds will become Governor of Iowa and she will have the power to appoint a new Lt. Governor. We continue to agree with the Attorney General and the Secretary of State. The Constitution and Iowa Code are clear. Suggesting anything else, even over six-pages, is simply political grandstanding.
So defensive. Branstad's spokesperson Ben Hammes did not answer my follow-ups: Why wouldn't Branstad and Reynolds welcome an official opinion from Miller on this subject? If the Iowa Constitution is so clear, why not settle any outstanding questions about terms such as "devolve" and "act as governor"? Wouldn't that reduce the risk of future litigation on this subject?
Johnson deserves credit for using his power as a state lawmaker to request a written opinion from Miller thoroughly exploring this issue. A plain reading of the constitution suggests the powers of the governor will "devolve" onto Reynolds. An amendment approved in 1988 affirmed that understanding, referring to a scenario in which "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."
When considering that amendment during the 1980s, the Iowa House and Senate could have adopted wording similar to what is found in the U.S. Constitution: "the Vice President shall become President” in the event of a vacancy and “shall nominate a Vice President” subsequently. But lawmakers and the voters of Iowa approved different language for our state's constitution.
If Miller believes Reynolds will become governor, with the authority to select a new lieutenant governor, show us the legal analysis. Otherwise his position appears to be one of political expediency.
Greenwood told me today on behalf of the Attorney General's office, "We just received Sen. Johnson’s request yesterday. We intend to further review our research and respond to Sen. Johnson’s request, which could be a letter or formal Attorney General Opinion."
Ideally, the Iowa Supreme Court would provide a definitive interpretation of language in the state constitution. There is plenty of time for the justices to consider the matter before the U.S. Senate takes up Branstad's nomination for ambassador to China. But I am not aware of an avenue to obtain a Supreme Court ruling other than filing than a lawsuit, which probably would not reach the high court before the 2018 election. I would welcome guidance from attorneys who may know of other options.
UPDATE: On the morning of February 16, Johnson announced during a "personal point" on the Iowa Senate floor that he has not received any written response from the Attorney General's office. He indicated that he plans to follow up with them. I am seeking comment on whether Miller plans to provide a full written opinion answering Johnson's questions.
Letter from State Senator David Johnson to Iowa Attorney General Tom Miller:
1923 opinion from the Iowa Attorney General's office regarding succession and powers of the lieutenant governor. In December, Greenwood highlighted the following section of this document:
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.