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Legal experts disagree over if new governor can appoint his successor as lieutenant governor

Legal experts disagree over if new governor can appoint his successor as lieutenant governor

June 3rd, 2018 by Bob Watson in Local News

Gov. Mike Parson listens as a reporter asks a question of him after he was sworn in as the 57th governor of Missouri on Friday, June 1, 2018.

Photo by Julie Smith /News Tribune.

Even before Mike Parson became governor Friday evening, many wondered who he might choose to be Missouri's next lieutenant governor.

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Some news stories said the job automatically went to Senate President Pro Tem Ron Richard, R-Joplin — who told reporters last week: "I have an interest in Sen. Kehoe being lieutenant governor."

Mike Kehoe, R-Jefferson City, said: "If doors open, I always look at them — I don't eliminate any options in the future — but it's a family decision. If that were to become available, we'd have to decide as a family."

The real question is: Can now-Gov. Parson make an appointment to fill the office he left Friday, when he became governor following Eric Greitens' resignation after being governor only 16 months?

After taking his oath as Missouri's 57th governor, Parson told reporters: "We're looking into that right now.

"I do believe there is some validity in appointing the lieutenant governor."

He said the question may need to be clarified, and he was disappointed that a Senate-sponsored proposal, which was added to a House bill but rejected by the House, didn't make it into any final bill.

"I think it is important for the state of Missouri to have a lieutenant governor — especially at a time like this, to be able to help with the governor's office and to be able to work together for the betterment of the state of Missouri," Parson noted, just minutes after he left the lieutenant governor's office in order to become governor.

"I think that's an important position, and I think it will become a much more important position," he added.

Richard said last week the state Senate's leaders have been told by their staff attorney that the job stays "open to the next election," which would be 2020 in the current case.

But the legal community isn't unanimous.

No appointment power

"The short answer is no," former Missouri Supreme Court Judge Mike Wolff said last week. "The governor does not have the authority to appoint a person to fill a vacancy in the office of lieutenant governor."

Wolff now is a professor emeritus and retired from the dean's job at the Saint Louis University Law School.

Before then-Gov. Mel Carnahan appointed him to the Supreme Court in August 1998, Wolff also had served as the governor's legal counsel in 1993-94 and as a special counsel after he returned to SLU.

"Under current law, the office would remain vacant until a new lieutenant governor is elected in 2020," he said in a three-page memo. "The Constitution does not provide for appointment or election of a lieutenant governor when there is a vacancy. Article 4, Section 4 authorizes legislation to provide for filling the vacancy, either by election or appointment, but none has been enacted."

Article 4 in Missouri's Constitution covers the Executive Department, and Section 4 is the governor's "Power of appointment to fill vacancies."

It says: "The governor shall fill all vacancies in public offices unless otherwise provided by law, and his appointees shall serve until their successors are duly elected or appointed and qualified."

But, Wolff noted, no law defines how an appointment filling a lieutenant governor's vacancy would occur.

Both the Constitution and statutes are clear — the lieutenant governor becomes governor when there's a vacancy in the governor's office, as happened last week with Greitens' resignation, or as in October 2000 when Lt. Gov. Roger Wilson became governor following then-Gov. Mel Carnahan's death in a plane crash.

But, Wolff noted, the Constitution provides (in Article 4, Section 11) that: "If there be no lieutenant governor, or (if) the lieutenant governor is incapable of acting, the president pro tempore of the senate, the speaker of the house, the secretary of state, the state auditor, the state treasurer, and the attorney general in succession shall act as governor."

And, Wolff added, state law explicitly excludes the lieutenant governor from the governor's powers to appoint someone to a vacant office.

"The pertinent statute, RSMo 105.030, says, 'Whenever any vacancy, caused in any manner or by any means whatsoever, occurs or exists in any state or county office originally filled by election of the people, other than in the offices of lieutenant governor, state senator or representative, or sheriff, the vacancy shall be filled by appointment by the governor.'"

To make his point, Wolff emphasized the section of the law in bold-faced type above.

He pointed to state law allowing the governor to appoint someone "to fill the offices of secretary of state, state auditor (as Gov. Jay Nixon did three years ago, naming Nicole Galloway to complete Tom Schweich's term after Schweich committed suicide), treasurer and attorney general.

"There is no law for filling a lieutenant governor vacancy either by appointment or by special election."

Yes, he can fill a Lt. Gov. vacancy

Jefferson City lawyer Joe Bednar followed Wolff as Carnahan's general counsel in 1994, and still held that position when the governor was killed in that October 2000 plane crash and Lt. Gov. Roger Wilson became governor.

Bednar told Wilson the governor could fill the vacancy in the lieutenant governor's office, and Wilson named state Sen. Joe Maxwell, D-Mexico — who had won the lieutenant governor's office in the November general election — to start in that job two months early.

Bednar said Wolff's analysis missed a key phrase in the Missouri Constitution, in Article 4, Section 10, which says: "There shall be a lieutenant governor."

He cited the same constitutional language Wolff quoted, that "the governor shall fill all vacancies in public offices unless otherwise provided by law," but reached the opposite conclusion.

Where the former Supreme Court judge and law school dean said the lack of a law means the governor is powerless to appoint someone to fill a lieutenant governor's vacancy, Bednar said the lack of specific legal directions for filling that vacancy just means the beginning of the sentence, "the governor shall fill all vacancies in public offices" is what applies.

"There's no place in the statutes that the Legislature has provided for the filling of that vacancy," he explained, "and you have a constitutional mandate that there 'shall be a lieutenant governor.'

"So it leaves you with only one choice — 'the governor has the power to fill all vacancies' by the Constitution — so he has the power to fill the job of lieutenant governor."

Bednar said Maxwell's appointment to the vacancy was the appropriate action for Wilson to take — even though Wilson was governor for less than three months. (Wilson had decided much earlier not to run for statewide office in 2000, and Bob Holden — then the state treasurer — was elected governor in November 2000).

"My job was to make sure that the state's laws were faithfully executed by the governor," Bednar explained. "We know there are tons of vacancies that aren't filled. There seems to be a constitutional mandate that there be a lieutenant governor."

When Wilson appointed Maxwell in November 2000, the News Tribune reported that "Wilson announced the appointment after being assured by Joe Bednar, the governor's legal counsel, and by the attorney general's office that he had the power to fill the vacancy created when he became governor Oct. 18."

Wilson said at the time: "It's appropriate (because) we have had action by the voters putting the lieutenant governor on several boards and commissions. The lieutenant governor does have constitutional responsibilities. And I think that recent events have proven to me to have the line of succession."

A middle ground?

Former Solicitor General James Layton, now a private-practice lawyer in St. Louis, was with then-Attorney General Jay Nixon's office in 2000.

He said last week that the statute, 105.030, "expressly excludes the lieutenant governor from the offices the governor can fill. But it does not expressly say that the governor cannot fill the lieutenant governor vacancy.

"Is the express exclusion enough to reverse the presumption that the governor can fill the vacancy?"

Layton added: "Someone looking at 105.030 as an originalist, focused on legislative intent, would likely conclude that the express exclusion meant that the governor could not fill a lieutenant governor vacancy. And that would have made sense.

"Unlike every other statewide officer, the lieutenant governor had no responsibilities that would need to be fulfilled by a successor. The lieutenant governor sat on various boards, each of which could achieve a quorum and conduct business without the lieutenant governor. Presiding over the Senate is something that a senator could do — and almost always does."

Wolff agreed.

"The governor, in whom the Constitution vests the state's executive power, presumably can assign the lieutenant governor's current executive duties to others in the executive branch," he said.

"As for the lieutenant governor's legislative role as presiding officer of the Senate, the Senate can, and often does, function without the lieutenant governor as its presiding officer."

Federal examples

In many (but not all) ways, Missouri's lieutenant governor serves a similar role as the vice president of the United States.

University of Missouri Law School professor Frank Bowman reminded the News Tribune: "Until the passage of the 25th Amendment in 1967, when a U.S. vice president ascended to the presidency, no replacement occurred. Teddy Roosevelt became president in 1901 after the assassination of President (William) McKinley and served without a VP throughout his term.

"(There's) no obvious reason why Missouri should be different."

Doug Abrams, the MU Law School's expert on federal constitutional issues, added: "A major impetus for the 25th Amendment was the realization that LBJ (Lyndon Johnson, who had suffered a near-fatal heart attack in 1955) had no vice president for more than a year after JFK's (John Kennedy's) assassination. Under the Presidential Succession Act of 1947, the next in line after the vice president was the House Speaker (72-year-old John McCormack, of Massachusetts). Then came the President Pro Tem of the Senate (86-year-old Carl Hayden, of Arizona). Not a healthy situation in the second half of the 20th century."

Abrams noted Harry S Truman served nearly a full term without a vice president after he became president when Franklin Roosevelt died only a month into his fourth term.

Although there had been several times when the U.S. government continued without a vice president, Abrams added, and Theodore Roosevelt, Johnson and Truman all were strong presidents, "none sought to appoint a new vice president without express constitutional or statutory authority."

Missouri's history

Bednar noted the national vice presidency history has no legal impact on Missouri, since "Missouri's Constitution stands on its own terms."

Wolff noted Missouri also has had several instances where there was a governor, but no lieutenant governor.

"There have been 47 lieutenant governors since Missouri became a state in 1821," he said. "In at least 11 cases, there were deaths or resignations and the office remained vacant, sometimes for years at a time.

"Other than the Civil War, when there was a 'provisional governor' selected by the State Convention as next in line of succession to the convention-selected governor, there apparently were no efforts to appoint a person to fill the office when a vacancy occurred" until 1968.

Then, Wolff said, Gov. Warren Hearnes named Lt. Gov.-elect William Morriss to succeed Tom Eagleton, who resigned the lieutenant governor's office early so he could be sworn in as a newly elected U.S. senator.

"But the leader of the Senate refused to recognize the appointment," Wolff said.

Neither the Morriss nor Maxwell cases "resulted in a definitive (court) ruling because the time period" between their appointment and their taking the oath for their elected term was so short, Wolff said.

There was talk of legal action, but none was taken.

Lawmakers try to spell it out

Wolff also noted the Legislature's attempts to make a law about filling a vacant lieutenant governor's position.

"A bill passed in 2013 provided for election of a (new) lieutenant governor," he said, "but the governor (Jay Nixon) vetoed it."

That bill would have placed an aide to the departing lieutenant governor in charge of the office's ministerial duties until a new officeholder was elected.

Nixon's veto message said the law "would have created a confusing and untenable process for filling the vacancy" while turning over management of the office to a "vaguely defined staff member," creating ambiguity and confusion.

Then-Sen. Mike Parson, R-Bolivar, voted for the bill and its emergency clause.

This year, the Senate approved an amendment to a House bill that would have allowed the governor to appoint a new lieutenant governor, with the Senate's consent.

Kehoe reminded the News Tribune that plan was proposed, in part, because of the lieutenant governor's constitutional duty to preside over the Senate's debates and to break tie votes when/if they occur.

But the House rejected that proposal, and the Senate removed it so that the rest of the bill — affecting how vacant offices are filled at the county level — could be passed and sent to the governor.

Which brings the discussion back to the main question.

Bednar said: "This is a very important office. I think all lieutenant governors have done a magnificent job of fulfilling that role. I was confident in 2000 of my legal opinion" that the governor can fill the vacancy, "and I'm confident of it today."

But Wolff said he's just as confident in his opposite opinion and stands behind his belief that the governor cannot fill a lieutenant governor's vacancy without a specific statute or constitutional provision requiring it.

Since the Constitution's order of succession says "if there be no lieutenant governor" then lists the officials who are in-line for any governor's office vacancy, Wolff asked: "How does that square with (the) 'there shall be a lieutenant governor'" that's in the Constitution section just before the order of succession language?

And, he asked, "Why did the Legislature pass a law for appointment of a lieutenant governor in 2013, and why did Nixon veto it?

"I don't believe he vetoed the bill because he thought the governor already had the power."

The Associated Press contributed information used in this article.