Iowa Attorney General Tom Miller has injected new uncertainty into the transition when Governor Terry Branstad leaves and Lieutenant Governor Kim Reynolds becomes governor.
According to Miller, Reynolds does not have the authority to name a new lieutenant governor. “I struggled with this,” Miller said during a news conference in his office this afternoon.
But Miller said it’s his reading of the constitution, court rulings in other states and the historical record that anyone who could become governor should be elected, not appointed. According to the other part of Miller’s new legal opinion, it’s clear Reynolds will get the title of governor.
“Unless and until our opinion is overturned by a court, we think it’s important for Iowans to call her governor, not acting governor,” Miller said.
In December, Miller issued an informal advisory that Reynolds would become governor when Branstad leaves and that she had the authority to name a new lieutenant governor. Miller said after intense discussions with three attorneys in his office, it became clear Reynolds does not have the authority to name a replacement lieutenant governor.
“We’ve worked hard on this,” Miller said. “We’ve taken some time, admittedly, but we’ve tried to get it right.”
A spokesman for Branstad and Reynolds indicated they are weighing their options. That means Reynolds might decide to select a new lieutenant governor, regardless of this opinion. Miller, who is a Democrat, said if that happens, he won’t challenge the new Republican governor’s move in court.
“The irony of this afternoon for me…is that I support the appointment of a lieutenant governor by the new governor and as a matter of policy and as a matter of constitutional law,” Miller said. “I think for a variety of reasons including sort of continuity of party holding the office, that it’s a good idea.”
But Miller said the state’s constitution has to be changed to accomplish that.
The chairman of the Iowa GOP and Republicans in the legislature accuse Miller of “flip flopping” and “playing politics” with this reversal on whether Reynolds has the authority to select a new lieutenant governor. Iowa’s secretary of state has issued a statement this (Monday) afternoon, saying it is his “position” that Reynolds has the authority to name a lieutenant governor once she takes over as governor. (See those statements, in full, below)
Some suggest Miller’s reversal from December is because Adam Gregg, the Republican who ran against Miller in 2014, is Reynold’s top choice to be her lieutenant governor. Miller told reporters he had heard Gregg was being considered.
“But when we did this opinion we did not know that it would have been him,” Miller said. “That would have made it a little more awkward, but it wouldn’t have changed the opinion. It wouldn’t have changed the cases in other states.”
Miller said he had hoped to release this opinion last week, but got it out today since Branstad ‘s appearing before a senate committee tomorrow and that’s a signal the gubernatorial transition will happen soon.
Here are statements from GOP officials, in the order received:
(DES MOINES) – Today, after learning of Attorney General Tom Miller’s reversal of opinion, Gov. Terry Branstad and Lt. Gov. Kim Reynolds issued the following statements, and provided both facts and background information to the public on the case for a new Lt. Governor.
Gov. Terry Branstad
“Tom Miller was crystal clear last December when he said Lt. Governor Reynolds could act upon existing law and appoint a Lt. Governor when she becomes Governor upon my resignation.
‘Our office has researched the law and consulted with the Governor’s office. We concur with the Governor’s conclusion that, upon resignation of Governor Branstad, Lt. Governor Reynolds will become Governor and will have the authority to appoint a new Lt. Governor.’ – Tom Miller’s Office, December 13, 2016.
“No new facts or laws have changed since December 13, 2016. Tom Miller has allowed politics to cloud his judgment and is ignoring Iowa law. This politically motivated opinion defies common sense. Iowans expect a Governor and Lt. Governor working on their behalf. This is disappointing.”
Lt. Gov. Kim Reynolds
“In December, Attorney General Tom Miller researched the law and concurred with the Secretary of State and our office that, upon Gov. Branstad’s resignation, I become Governor and have the authority to appoint a new Lt. Governor. Since then, I’ve been moving forward with that understanding. Now, five months later, just one day before Governor Branstad testifies before the U.S. Senate Foreign Relations Committee, the Attorney General has reversed himself, but the law hasn’t changed. 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.”
Ben Hammes, Communications Director
“The power of a Governor to appoint a new Lt. Governor was put into the law in 2009 by the democrats. That law says: ‘An appointment by the governor to fill a vacancy in the office of lieutenant governor shall be for the balance of the unexpired term.’ This bill passed unanimously by both parties and signed into law by a democrat Governor. 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.”
DES MOINES) – House Speaker Linda Upmeyer (R-Clear Lake) and House Majority Leader Chris Hagenow (R-Windsor Heights) issued the following joint statement in response to Attorney General Tom Miller’s formal opinion on the gubernatorial transition:
“In 2009, we both voted to give the Governor the authority to appoint a new Lieutenant Governor in the event of a vacancy. Attorney General Miller confirmed in December that Lt. Gov. Reynolds would have the authority to appoint her successor. The law was clear when he made that first announcement, and it is clear today. A new Governor should hold the same powers and duties that their predecessor held.
It is disappointing that the Attorney General has chosen to bring politics into this transition which will ultimately cost Iowans more time and money. 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.”
Iowa GOP chairman Jeff Kaufmann issued a written statement.
“Tom Miller today twisted himself into a pretzel in attempting to explain his stunning reversal,” said RPI Chairman Jeff Kaufmann. “His 23-page clean-up document is a head-scratching display of pure political partisanship. Does he really think Iowans will buy his argument that Kim Reynolds will serve as both governor and her own lieutenant governor? His conclusion is absurd. No Iowan can follow the mindbending partisan acrobatics Miller underwent to argue his ridiculous assertion against the law giving the governor the authority to appoint his or her lieutenant governor upon taking office. It also speaks to the cowardice of Iowa Democrats that they again enlisted their partisan attack dog David Johnson to lead the charge against this law that was proposed by a Democrat secretary of state, passed by a Democrat-led Legislature and signed into law by a Democrat governor. And it’s a law the Republican Party of Iowa wholly supports and believes should be followed.”
Senators Dix and Whitver Comment on Attorney General Decision
Des Moines – Senate Majority Leader Bill Dix and Senate President Jack Whitver offered the following comment regarding Attorney General Miller’s reversal of his previous decision regarding gubernatorial transition.
Senate Majority Leader Bill Dix:
“It is disappointing Tom Miller has decided to play politics rather than follow the law. Nothing has changed since he stated very clearly Lieutenant Governor Reynolds would become governor once the office was vacant. These actions are exactly the type of politics Iowans reject. It is common sense, once Governor Branstad resigns, Lieutenant Governor Reynolds becomes governor and will have the power to appoint a new lieutenant governor.”
Senate President Jack Whitver:
“It is unfortunate Attorney General Miller chose to play partisan politics today, when just last December he was in agreement with the Governor’s Office and the Secretary of State stating Lt. Gov. Reynolds will become Governor and appoint a new Lt. Governor. I believe upon the resignation of the Governor, the Lt. Governor will become governor, with the duties and powers of that office, she should have the ability to appoint her successor.”
DES MOINES – Iowa Secretary of State Paul Pate issues the following statement regarding the announcement by Attorney General Tom Miller:
“It is my position, as the State Commissioner of Elections, that both the Iowa Constitution and the Iowa Code agree that Kim Reynolds should be allowed to select a person to fill the vacancy in the Office of Lieutenant Governor upon her ascendancy to the Governor’s Office. When this potential vacancy was announced, the Iowa Secretary of State’s Office reached an opinion that concurred with the Attorney General’s Office and the Office of the Governor.
The new opinion from Attorney General Tom Miller is confusing and unnecessary since Iowa Code § 69.8 allows a governor to appoint a Lieutenant Governor in case of a vacancy. There is sufficient legal authority for Governor Reynolds to fill the vacancy of Lieutenant Governor. I believe Attorney General Miller had this correct in his first analysis in December. Nothing in the Iowa Constitution, nor Iowa Code, has changed since then that would affect this legal authority.” – Paul Pate, Iowa Secretary of State and Commissioner of Elections
“In 2009, the Iowa Legislature passed a statute to clarify that if there is a vacancy in the Office of the Lieutenant Governor, the Governor has the authority to fill that vacancy. Former Iowa Secretary of State and Commissioner of Elections Michael Mauro proposed that provision and it was signed into law by former Secretary of State and then-Governor Chet Culver:
“I served as the Democratic Secretary of State in 2009. As Secretary of State, I proposed a commonsense change in the law that specifically says that a vacancy in the Office of Lieutenant Governor is to be filled by the Governor. The changes were accepted unanimously by both Democrats and Republicans in the Iowa Legislature and signed by Governor Culver. As Secretary of State, I prided myself in doing the right thing and implementing the law correctly, regardless of politics. I am disappointed Tom Miller is not doing the same.” – Michael Mauro, former Iowa Secretary of State and Commissioner of Elections
Former Iowa Secretary of State and Commissioner of Elections Matt Schultz concurs:
“As former Secretary of State, it is my belief that the Iowa Constitution implies that an individual should occupy the Office of Lieutenant Governor, even when that vacancy is created after the Lieutenant Governor assumes the Office of Governor due to a resignation. This is made clear in Iowa Code section 69.8. I believe the law supports Kim Reynolds appointing an individual to the position of Lieutenant Governor after she is sworn in as Governor of this great state.” – Matt Schultz, former Iowa Secretary of State and Commission of Elections
Senator Charles Grassley issued a statement:
“Last December and today, I asked constitutional lawyers on the Judiciary Committee staff about the question. They agreed with the Iowa attorney general’s conclusion last December. Kim Reynolds will have the authority as governor to appoint a lieutenant governor. When prior vacancies occurred, no new lieutenant governor was appointed but the law has changed since the last time this occurred clarifying the appointment authority of the governor.”