Normally, we lament the time lost and expense spawned by tossing disputes between Iowa’s elected officials into the courts. But when the dispute involves sharply differing interpretations of our state Constitution, it’s among the judiciary’s core functions to settle the issue.
We’ve arrived at just such a moment in need of judicial refereeing.
All signs point to Gov. Terry Branstad departing within weeks to become the next U.S. ambassador to China. His powers and duties, under the constitution, will “devolve” to Lt. Gov. Kim Reynolds for the remainder of his term, ending in January 2019. Such transitions are rare in Iowa history, and one of this length is unprecedented.
Due to our constitution’s vague wording, questions arose as to whether Reynolds would fully become governor or simply acting governor, and would she be permitted to appoint a new lieutenant governor?
In December, Attorney General Tom Miller’s office issued a swift, informal pronouncement based on a 1920s-era attorney general’s opinion that Reynolds would become governor and could appoint a lieutenant. But state Sen. David Johnson, the Legislature’s lone independent, asked Miller to issue a formal legal opinion.
Miller’s opinion, based on months of staff research, arrived this week. In it, the attorney general found that although Reynolds will fully become governor, the Constitution will not allow her to appoint a lieutenant. Miller’s office contends when Branstad’s powers “devolve,” Reynolds will essentially be holding both offices. The Constitution makes no provision for filling the open lieutenant governor’s office.
Reactions to Miller’s reversal were swift and strong. Republicans accused the nine-term Democrat of playing politics by seeking to deny a new GOP governor important appointment authority. Some legal experts panned Miller’s conclusion that Reynolds will be holding two offices. Miller cited constitutional framers’ distaste for appointed politicians in the line of succession. Critics pointed to framers’ opposition to one official holding two offices.
Miller’s formal opinion carries weight, but not the force of law. Reynolds has suggested she might ignore it and appoint a lieutenant governor.
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We think that would be a big mistake, resulting in a cloud of illegitimacy hanging over whomever she chooses. We also reject the notion that an attorney general Iowans have elected for the better part of four decades as our chief law-enforcer is playing political games. We find his analysis sincere and compelling. We also find some merit in criticisms off that analysis.
So the dispute remains. Amending the constitution, as Miller advises, would take years. Short of that, we need a judicial call, and we need it before any appointment is made.
We’ll leave how that happens to to legal experts. But leaving this political charged dispute to fester on is not an option.
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