Thursday, May 25, 2017

How to Start a Governorship

With President Trump's appointment of Iowa Governor Terry Branstad as Ambassador to China, his duties and powers devolved to Lieutenant Governor Kim Reynolds. On her first day as Governor she wanted to appoint a replacement Lieutenant Governor. It was unclear whether she had that power. One option would be to ignore her state's Constitution and stiff its Attorney General. Fortunately, she chose the other option -- "a little sidestep" reminiscent of a Texas Governor of years gone by.

[This is a one-minute, "fair use" clip of a wonderful scene from the feature film, "Best Little Whorehouse in Texas," loosely based on an establishment outside of Austin, Texas, many years ago called "The Chicken Ranch." The Texas Governor is under great political pressure from both sides, as you might imagine. Is he going to do anything about it? As one reporter sizes up the Governor's statement: "It's a possible 'maybe.'"]

Don't get me wrong. I think it's about time that Iowa have a woman as governor -- and United States senator -- even though I have, and probably will continue to, differ with these two on most issues. I believe that women's rights are among the top priority human rights issues of our age (globally as well as in the U.S.), and that the cause is greatly advanced with women in government. With 6 women of 50 Iowa state senators (12%) and 27 women among 100 House members (27%) Iowa still has a long way to go. I support Emily's List of women candidates for office, prefer that my Kiva loans in third world countries go to the women who have over the years, so far, paid back 100 cents of every dollar loaned, and I cheer women's victories from Iowa Women's Basketball to 100 Grannies. And see, "The Natural Superiority of Women; And Why Men Fail," September 11, 2012.

Indeed, it is for those reasons it's essential Governor Kim Reynolds not get off on the wrong foot.

What has she done -- or failed to do -- that is problematical? She has made one of her first acts the "appointment" of a Lieutenant Governor (Adam Gregg). Jason Noble, "Reynolds Taps Adam Gregg as Lieutenant Governor, but There's a Catch," Des Moines Register online edition, May 25, 2017.

There's little to object to about the person she chose. Gregg has a spectacular paper record in and out of government.

So what's the problem?

The problem is that the Iowa Constitution, its language, the context of that language, its courts' interpretations, and the interpretations of other states' constitutions with similar language, forbids a Lieutenant Governor, who takes over the responsibilities of a Governor, to appoint a new Lieutenant Governor. And in this instance, that conclusion is driven home by the legal opinion of Iowa's Attorney General, Tom Miller.
And this was no ordinary two-page legal opinion. The research, citations, organization, analysis, and quality of writing in the 23-page document are of law review article quality. If you would like to read it, you'll find a link to it HERE.

That opinion is the best source (indeed the only source so far as I know) for the contested issues, but some general examples (not necessarily applicable in this case) may help. However, know that the following paragraphs are not "the analysis" or "the answer" to the legal issues raised by the Iowa Constitution. They are only designed to warm up your brain to receive that analysis and answer from Attorney General Tom Miller's opinion.

For starters, it's necessary to understand the distinctions between "being" and "doing." I sometimes ask law school colleagues departing for deanships elsewhere, "Is it that you really want to do what deans do, or is it that you just want to be a dean?" It's not unusual for them to return to the classroom once they come to realize what they signed up to do.

Clearly, when the office of Governor is vacated, someone needs to do the constitutional tasks the Governor was doing -- as when there is a vacancy in the office of the president of a corporation or university. In the case of a Governor, that person is the Lieutenant Governor. Does that mean the Lieutenant Governor becomes the Governor, with the title of Governor, or that a state still has a Lieutenant Governor who is merely authorized to do what the Governor was doing?

Under these circumstances, if the Lieutenant Governor remains the Lieutenant Governor there is simply no vacancy to be filled. Or, if a state's constitution provides that the Lieutenant Governor is an elected position, no one can "appoint" a Lieutenant Governor. Or if a state's constitution provides an order of succession -- in Iowa it is Governor, to Lieutenant Governor, to Senate President, to House Speaker -- it would be inconsistent with that constitutional process to have, in effect, two Lieutenant Governors (one formerly elected, the second appointed by the first), thereby preventing (in Iowa) the Senate President from assuming the position of Governor.

In other words, had Governor Reynolds barged ahead and "appointed" a Lieutenant Governor, the best that could be said on her behalf would be that it was not clear she had that power. More likely, as the State's Attorney General concluded, were she to make such an appointment, it would be litigated up to an Iowa Supreme Court that would most likely find she did not have that power.
Before I knew that she had already appointed Adam Gregg, it seemed to me she had a couple of possibilities. (1) If she didn't wish to show her hand before the 2018 election, she could now appoint anyone she was leaning toward to some staff position -- something she would clearly have authority to do. (2) If she thought it politically advantageous, she could indicate now the person she currently proposes to select at that time as her running mate. (That is, while she can't appoint a Lieutenant Governor, with her Party's acquiescence she can in effect "appoint" a running mate who, if they win the election, becomes an "elected" Lieutenant Governor.)

What she ended up doing today [May 25, 2017] was something of a combination between those two:
Gregg will hold the title of lieutenant governor, but he will not be responsible for its sole constitutional function [succession to the Governorship]. Should Reynolds leave office, the vacancy would be filled not by Gregg but instead by Senate President Jack Whitver, the No. 3 on the gubernatorial depth chart according to the state constitution. . . . Gregg will "operate" the office of lieutenant governor but not actually "hold" that office. That means he'll be tasked with the ceremonial and administrative tasks of the office — and will draw the state salary associated with it — while remaining outside the gubernatorial line of succession.
Jason Noble, "Reynolds Taps Adam Gregg as Lieutenant Governor, but There's a Catch," Des Moines Register online edition, May 25, 2017.

Constitutional crisis averted. Gregg will be, in effect, a staff aide to the Governor, performing Lieutenant Governor-type tasks she might otherwise have to do. Meanwhile, should she change her mind during the next few months, she could designate someone else as her running mate without having to impeach Adam Gregg.

Not too bad a way to start a governorship.

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