Condition of the State

Iowa Gov. Terry Branstad gets a hug from Lt. Gov. Kim Reynolds Tuesday after delivering his annual condition of the state address before a joint session of the Iowa Legislature at the Statehouse in Des Moines

Associated Press

Lt. Gov. Kim Reynolds has yet to assume the duties of Iowa's governor, but already she seems intent on pursuing a costly and politically divisive course of action.

With Gov. Terry Branstad expected to leave office soon and become the U.S. ambassador to China, Reynolds is preparing to move into the governor's office. While there's no question she will assume the duties and responsibilities of governor, there is a legitimate question as to whether she can appoint her own lieutenant governor.

It's a question of great import because, although we've argued repeatedly that the office of lieutenant governor could — and should — be disposed of, it exists today as an elective office. In other words, it's not the sort of job that is handed out by appointment. At least it never has been in Iowa.

As the current situation demonstrates, a lieutenant governor can assume the job of governor without ever having run for that particular job. What's more, if Reynolds were to resign or be incapacitated after having appointed her own lieutenant governor, Iowa could then be led by a governor who has never run for any sort of statewide office.

Attorney General Tom Miller has issued a formal opinion that says while Reynolds will unquestionably assume the duties of governor once Branstad leaves Iowa, it won't be through the process of leaving her old job to take a new job. Rather, Miller says, the duties of the governor will "devolve" to Reynolds and she will "hold both the office of governor and office of lieutenant governor" — which means, he says, there will be no vacancy for her to fill.

If that doesn't sound logical to you, consider the fact that the main reason the office of lieutenant governor was created, as articulated at the 1857 constitutional convention, was to ensure that the first person in the line of succession for the job of governor would be a statewide-elected official, not a political appointee. (The Iowa Constitution of 1846 hadn't even provided for the job of lieutenant governor.)

Subsequently, four Iowa governors left office prematurely. Between 1877 and 1969, three governors resigned and one died while in office. In each of those instances, the lieutenant governor assumed the duties of the governor without appointing a new lieutenant governor.

Has Iowa somehow gotten it wrong over the past 140 years? Should those four previous governors have appointed their own lieutenant governors? To answer those questions, it's helpful to look to other states for guidance and, as Miller points out, in other states "there is virtually no debate on whether the new governor can appoint a new lieutenant governor. The widely accepted answer to that question is no."

Now, it would have helped if Miller had reached this same conclusion back in December. But at that time, Miller's office issued an informal legal review that concurred with Gov. Terry Branstad's assertion that "in her capacity as governor, Gov. Reynolds will have the authority to appoint a new lieutenant governor."

Not surprisingly, Kim Reynolds agrees with Miller's earlier opinion, and she points to a 2009 law that speaks to the manner in which vacancies for elective offices are to be filled. But as Miller points out, the line of succession that's outlined in the Iowa Constitution can't be modified by a state law.

Still, it appears that Reynolds is determined to appoint a lieutenant governor, stating, "With the law on our side, we will move forward with (Miller's) first conclusion as we examine our options."

It's hard to argue that the law is on your side when the state's highest ranking law enforcement official, who is paid to defend the state's position in court, says otherwise.

It would be a shame if one of Reynolds' first official acts as governor was to defy the attorney general and invite a costly, politically charged court challenge.

This editorial appeared in the May 3 edition of the Des Moines Register.

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