May 1, 2017
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.
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