Legal opinion adds unexpected twist to Branstad succession

DES MOINES - Iowa Attorney General Tom Miller surprisingly reversed course Monday, issuing a formal opinion that Lt. Gov. Kim Reynolds will be governor 'flat out” when Terry Branstad resigns but will not have authority to appoint her replacement.

The Democratic attorney general said the opinion was based on a constitutional analysis he conducted with a team of legal experts in his office. He also cited past elected executive successions at the state and national level to bolster his position that Reynolds would serve in both capacities until the next election in 2018.

Within minutes of the announcement, Republicans blasted it.

Branstad said it was 'a politically motivated option” that defied common sense. Reynolds said her reading of the law is that she would be vacating her role as lieutenant governor and could name a successor.

'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,” she said in a statement.

Reynolds could become governor later this month if Branstad is confirmed as the new U.S. ambassador to China. He appears Tuesday before the Senate Foreign Relations Committee.

At a news conference Monday, Miller said he hoped the governor's office would abide by his legal opinion, but indicated he would not challenge any action to defy it in court - although he noted other Iowans could if they would consider an appointment in defiance of Iowa's constitution.

At the request of state Sen. David Johnson, I-Ocheyedan, Miller issued a 23-page opinion in which he concluded ' … the powers and duties of the office of governor fall upon the lieutenant governor,” meaning that if a governor resigns, the lieutenant governor becomes governor.

Miller said his conclusion was based on an Iowa constitution provision addressing a governor's resignation, which states, ' … the powers and duties of the office … shall devolve upon the lieutenant governor.”

However, Miller said his reading of the constitution led him to conclude that once this happens with Reynolds, her office becomes vacant.

'In other words, upon a governor's resignation, the lieutenant governor will hold both the offices of governor and lieutenant governor. There is no vacancy to be filled,” according to the opinion.

During the news conference, Miller and Solicitor General Jeffrey Thompson noted that in all four previous instances when an Iowa governor resigned or died while in office, the lieutenant governor was always considered governor, but never appointed or named a new lieutenant governor.

Miller said it would take an Iowa constitutional amendment to allow for the appointment of a lieutenant governor vacancy - a move he said he would support.

The opinion marked a departure from a statement Miller's office made in December - following an informal legal review in response to media inquiries - that his office concurred with 'Gov. Branstad's conclusion that … in her capacity as governor, Gov. Reynolds will have the authority to appoint a new lieutenant governor.”

The December statement was based in part, Miller said, on an Iowa Code section addressing vacancies of office holders. His formal opinion concluded the statute does not apply when a governor resigns and the powers and duties devolve upon the lieutenant governor.

'We've take some time admittedly, but we've tried to get it right,” Miller said. 'We always try and do it according to the law. What does the law say? Not what politics says, not what policy says. What does the law say, and this is the best reading that we have of the law. It's a split decision and it's one that we believe is right.”

Johnson, in an interview, thanked Miller and his team 'with deep gratitude” for their time researching the constitutional question, adding 'I also applaud General Miller's commitment to getting it right.”

However, Branstad said nothing has changed in the facts or the law since Miller staked out a 'crystal clear” position in December.

'Tom Miller has allowed politics to cloud his judgment and is ignoring Iowa law,” Branstad said in a statement. 'This is disappointing.”

Reynolds said Monday she has been moving forward in her transition planning from the position that she would appoint her successor.

'Now, five months later, just one day before Gov. Branstad testifies before the U.S. Senate Foreign Relations Committee, the Attorney General has reversed himself, but the law hasn't changed.”

Ben Hammes, Branstad's communications director, said the power of a governor to appoint a new lieutenant governor was put into the law and signed in 2009 - all under Democratic control.

'Now, just because the Democrats do not control the governor's office, Attorney General Miller wants to pretend like this law does not exist, and issue a non-binding opinion. Quite frankly, this is what Iowans are sick and tired of. The Attorney General should be upholding the law, not ignoring it.”

House Speaker Linda Upmeyer, R-Clear Lake, and House Majority Leader Chris Hagenow, R-Windsor Heights, issued a joint statement noting they both voted in 2009 to give the governor the authority to appoint a new lieutenant in the event of a vacancy.

'It is disappointing that the attorney general has chosen to bring politics into this transition which will ultimately cost Iowans more time and money,” the GOP leaders said. 'This is clearly a partisan move to muddy the waters in an attempt to delegitimize Lt. Gov. Reynolds as she becomes our next governor. Iowans expect better.”