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Iowa’s new lieutenant governor is in office, but outside line of succession

by Jon Davis ~ September 2017 ~ Stateline Midwest »
When is a lieutenant governor not the lieutenant governor? In Iowa, it seems the answer is: when the lieutenant governor becomes governor, and in turn appoints a new lieutenant governor. The question arose earlier this year after then-Iowa Gov. Terry Branstad was chosen to be U.S. ambassador to China. State Sen. David Johnson in February asked Attorney General Tom Miller for an official opinion on what would happen to the office of lieutenant governor if then-Lt. Gov. Kim Reynolds became governor.
Miller agreed that two constitutional questions were in play: First, if the governor resigns, does the lieutenant governor become governor? And second, if that happens, may the new governor appoint a new lieutenant governor?
He issued his formal legal opinion in May: If a governor resigns, the lieutenant governor becomes governor for all intents and purposes. However, he or she does not have legal authority to appoint a new lieutenant governor because, according to Miller’s reading of Iowa’s Constitution, “Upon the governor’s resignation, the powers and duties of the office will devolve or fall upon the lieutenant governor — who does not ascend or rise to the office of Governor.”
“This opinion conveys that, in a sense, the two offices merge,” Miller said in a press release accompanying the opinion. “This is consistent with numerous cases in other states that addressed this question. It is also consistent with a close reading of the Iowa governor’s succession provision [in the Constitution].”
Reynolds’ solution was to name state public defender Adam Gregg as “acting” lieutenant governor; he’ll carry out the office’s administrative and ceremonial functions, but cannot become governor if Reynolds leaves office early. If that should happen, Senate President Jack Whitver would become governor, being third in line in succession under the Iowa Constitution.
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.
Julia Hurst, executive director of the National Lieutenant Governors Association, says it’s not uncommon for states to examine or re-examine their succession laws when a lieutenant governor replaces a governor. “The Iowa succession [situation] was reflective of national history and events regarding gubernatorial succession,” she says.
California’s 2003 recall of Gray Davis, for example, forced a look at whether the recall law would supercede the normal line of succession in picking his replacement; in other words, would Davis’ lieutenant governor, Cruz Bustamante, become governor, or would a new election be held? A court eventually ruled that the recall law would prevail, and Arnold Schwarzenegger subsequently bested a 135-candidate field.
The recent situation in Iowa also raises questions about what happens when vacancies occur in the lieutenant governor’s office. In some states, state constitutions provide clear direction. In Illinois, for example, the office “remains vacant until the end of the term.” This is what occurred in 2009, when Lt. Gov. Pat Quinn took over from impeached/convicted Gov. Rod Blagojevich.
Minnesota’s Constitution spells out that the Senate president pro tempore ascends to the office of lieutenant governor when a vacancy occurs. States such as Ohio and South Dakota call for the governor to nominate and the legislature to nominate a new lieutenant governor. In North Dakota in 2010, Lt. Gov. Jack Dalrymple replaced Gov. John Hoeven after the latter became a U.S. senator, and named then-U.S. Attorney Drew Wrigley as lieutenant governor.
Now Kansas may be next to have this discussion. Gov. Sam Brownback was named by President Trump on July 26 to serve as the U.S. “Ambassador at-Large for International Religious Freedom.” If he is confirmed by the U.S. Senate, Lt. Gov. Jeff Colyer would succeed him.

 

Capital Closeup is an ongoing series of articles focusing on institutional issues in state governments and legislatures.