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Missouri Democrats sue over lieutenant governor appointment

Missouri Democrats sue over lieutenant governor appointment

June 19th, 2018 by Bob Watson in Missouri News

Missouri Lieutenant Gov. Mike Kehoe makes his opening statement during a news conference in the governor's office at the Missouri State Capitol in Jefferson City on Monday, June 18, 2018.

Photo by Emil Lippe /News Tribune.

Gov. Mike Parson "has no authority to appoint a lieutenant governor to fill the now-existing vacancy," the Missouri Democratic Party argued in a six-page lawsuit made available Tuesday.

The lawsuit was filed Monday night, just hours after Parson named state Sen. Mike Kehoe, R-Jefferson City, to the job left vacant June 1, when Parson became governor following Eric Greitens' resignation.

The suit asks the Cole County Circuit Court to block Parson from appointing a lieutenant governor and specifically to block him from appointing Kehoe to the job, and to prohibit "Mike Kehoe from serving as lieutenant governor, unless elected to such office by the people."

And, the lawsuit said, the court should declare that:

"Parson is without legal authority to appoint a lieutenant governor."

Parson's "purported appointment of Mike Kehoe as lieutenant governor was ineffective."

Mike Kehoe "is not lieutenant governor of the state of Missouri."

Mary Compton, spokeswoman for Attorney General Josh Hawley, told the News Tribune on Tuesday: "The attorney general supports Lt. Gov. Kehoe and looks forward to working with him and Gov. Parson. This office is prepared to defend the governor's decision in court."

The suit brings to the courts a long-running argument over the governor's powers to fill a vacancy in the lieutenant governor's office.

When Parson announced Kehoe's appointment Monday afternoon, he said he acted "within my authority" and was supported by five of the seven living former governors — of both parties.

In a news release from Parson's office, former Gov. Jay Nixon, an attorney, said: "Missouri's unique succession laws could cause constitutional challenges if the governor becomes disabled when the lieutenant governor's office remained vacant.

"As attorney general and later governor, I researched this issue extensively, and firmly believe the governor has the authority to fill a vacancy in this office by appointment."

On Tuesday afternoon, Parson spokeswoman Kelli Jones said: "Missouri's Constitution is clear in granting gubernatorial authority and includes a mandate to fill the vacancy of the lieutenant governor. We are confident this appointment will be successfully upheld."

Missouri's Constitution says: "There shall be a lieutenant governor who shall have the same qualifications as the governor and shall be ex officio president of the Senate," (Article 4, Section 10).

The Constitution also says: "The governor shall fill all vacancies in public offices unless otherwise provided by law," (Article 4, Section 4).

But, the lawsuit argues, state law specifically rejects the governor's direct appointment.

The lawsuit points to Section 105.030, and emphasized the section about the lieutenant governor's office with italics: "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, sheriff the vacancy shall be filled by appointment by the governor "

The suit notes state law specifies how to fill legislative or county sheriff vacancies, "but provides no way to fill a vacancy in the office of lieutenant governor. This omission evidences the General Assembly's intent that should a vacancy arise in the office of lieutenant governor, the office will remain vacant until the next applicable election."

However, Joe Bednar, a Jefferson City lawyer who once served as Gov. Mel Carnahan's legal counsel — and supports the governor's power to appoint the lieutenant governor — said Tuesday that the supporters of that position don't finish reading the complicated sentence in 105.030.

"The appointees" covered by that law, he said, "all have to run for office at the next general election" — a requirement that doesn't apply to the lieutenant governor.

He said when the Constitution says there "shall be a lieutenant governor," there's no further argument.

Mike Wolff, a former state Supreme Court judge and chief justice, who now is retired from serving as dean of the Saint Louis University Law School, was Carnahan's chief counsel before Bednar.

And Wolff believes the governor doesn't have the power to fill the lieutenant governor vacancy.

But, he said Tuesday, "It seems important to have a ruling as to the legitimacy of the Kehoe appointment."

He explained, if Parson "were to die next week, God forbid, who would be governor? If Parson had no authority under the Constitution and statutes to make the appointment, then the office would be vacant.

"And Article 4, Section 11(a) — the order of succession provision of the Constitution — says 'if there be no lieutenant governor,' then the president pro tem of the Senate would become governor."

Today, that would be Ron Richard, R-Joplin — who told reporters last week he wanted Kehoe to get the lieutenant governor's job — and said in a statement after Monday's appointment: "For more than a decade, Sen. Kehoe has proven he has the experience and is committed to serving the people of Missouri. I have been fortunate to witness his strong leadership skills and his passion for the Show-Me State."

The lawsuit names Darrell Cope, of Hartville, as a taxpayer plaintiff with standing to sue because appointing Kehoe to the lieutenant governor's office "will require the expenditure of revenue collected by taxpayers to fund the office."

Cope also was identified as "a World War II veteran (and) as an elderly Missouri veteran, (who has) a direct personal interest in being able to vote for lieutenant governor because the lieutenant governor is, by statute, Missouri's official advocate for senior citizens and is directly responsible for government assistance for the elderly."

And the Democratic Party argues it is adversely affected by Kehoe's appointment because it "will create an electoral disadvantage for the Party and its members, Democratic voters in the State of Missouri. If Gov. Parson is permitted to appoint a lieutenant governor, then Mike Kehoe will be in a position to run as an incumbent lieutenant governor in 2020.

"Incumbent elected officials have significant fundraising and name recognition advantages over challengers (and) have a material electoral advantage over their challengers in Missouri."

An update to this article has added details.