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Neighbors Growing Together | Oct 21, 2017

Miller: Reynolds has no power to appointment replacement

By Ed Tibbetts, Quad City Times | May 02, 2017

Iowa Lt. Gov. Kim Reynolds will succeed Gov. Terry Branstad when he leaves office, but she won't have the power to appoint her own replacement, Attorney General Tom Miller said on Monday.

The attorney general's 23-page opinion drew immediate criticism from Republicans, as Branstad prepares to leave office and become the ambassador to China.

Reynolds has been preparing to take Branstad's place for months, and a simmering question has been whether she would become the governor or simply assume the powers of the office. In addition, questions were raised what powers she would have.

State Sen. David Johnson, an independent from Ocheydan, asked for clarification in February after the governor's office — and, initially, the attorney general, too — said Reynolds could become governor and appoint a successor to her post.

On Monday, Miller, who is a Democrat, said his office took a deeper look after Johnson's request and concluded that, based on the state Constitution and the practice of other states, Reynolds would, in fact, become governor. However, he said the section of Iowa's Constitution that deals with succession, as well as past practices in Iowa and at the federal level, convinced him that while the powers and duties of the office would "devolve" upon the lieutenant governor, Reynolds would not be vacating her post.

Therefore, "there is no vacancy to be filled," he said. Opinions from the attorney general are not legally binding, but the courts often pay attention to them. Republicans jumped on the development to accuse Miller of flip-flopping. And Reynolds indicated she would pay little heed to the new conclusions.

In a statement, she said, "The law still states that as Governor, I vacate my role as Lt. Governor and am able to appoint a new Lt. Governor. With the law on our side we will move forward with his first conclusion as we examine our options in light of Tom Miller’s reversal.”

Branstad, who is preparing to have his hearing before the Senate Foreign Relations Committee on Tuesday, said "this politically motivated opinion defies common sense."

The governor's office pointed to a 2009 state law that they say would give Reynolds the authority to appoint a lieutenant governor. They note the law was signed by Gov. Chet Culver, a Democrat. Branstad's office also pointed to other states to back up their case, including a 2009 decision by a New York court that upheld the power of Gov. David Paterson to appoint a lieutenant governor.

Secretary of State Paul Pate also issued a statement in which he and two former secretaries of state, fellow Republican Matt Schultz and Michael Mauro, a Democrat, condemned Miller's opinion. In the statement, Mauro said it was he who proposed the "common sense" changes approved in 2009. Mauro is the Branstad-appointed state labor commissioner.

But Miller, in explaining his decision, said that although "the lieutenant governor becomes governor," there is no power to appoint a replacement because the two offices essentially are merging.

In particular, he pointed to Article IV, Section 19 of Iowa's Constitution, which he said sets out a "precise" order of succession.

"You can't add to it by statute," Miller said.

Despite his opinion on the matter, Miller said his office would not challenge Reynolds should she choose to appoint a lieutenant governor.

"We would hope she wouldn't because we all have the obligation to follow the law," Miller said. But he also said that his office also could not defend the governor's office if such an appointment would be challenged in court.

Miller's opinion Monday was especially striking because in December, he sided with the governor's office. Asked about that, the attorney general said the response then came after a "quick look" at the law and in response to media inquiries. He added it also may have been influenced by his preference, as a matter of policy, that the lieutenant governor be empowered to appoint a replacement.

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