THOMAS

THOMAS J.
J. MILLER H lyH "7 O 1305
1305 E. WALNUT
WALNUTST.
ATTORNEYGENERAL
ATTORNEY GENERAL tt Wtf H DESMOINES,
DES MOINES, IA iA 50319
P: 515-281-5164
515-281-5164
www.iowaattomeygeneral.gov
www.iowaattorneygeneral.gov

IOWA DEPARTMENT
IOWA DEPARTMENT OF
OFJUSTICE
JUSTICE
OFFICE OF
OF THE
THE ATTORNEY
ATTORNEY GENERAL
GENERAL

IOWA ATTORNEY
IOWA ATTORNEY GENERAL
GENERAL OPINION
OPINION
#17-04-1
#17-04-1

May 1,
1, 2017
2017

The Honorable
The Honorable David
DavidJohnson
Johnson
State Senator
State Senator
PO Box
FO Box 279
279
Ocheyedan,
Ocheyedan, Iowa
Iowa 51354
51354

Dear Senator
Dear Senator Johnson:
Johnson:

Thank
Thank you
you forfor your
your letter
letter ofof February
February 1, 1, 2017.
2017. Your Your letter
letter references
references
Governor
GovernorTerry TerryBranstad's
Branstad'srecent recent nomination
nominationtoto serve serve asas United
United States
States
Ambassador toto China
Ambassador China and poses nine
and poses nine specific
specific questions
questions aboutabout the
the effect of
effect his
of his
potential
potential resignation
resignationas as Governor
GovernorofofIowa. Iowa. We agree agree that
that your letter raises
your letter raises
important
important legal questions about
legal questions about Iowa's
Iowa's constitutional
constitutional framework for the
framework for the
succession
succession of of executive
executive power.
power. ThisThis office
officehas has not
not previously
previously addressed
addressed thesethese
questions directly,
questions directly, nor
nor has the
the Iowa
Iowa Supreme
Supreme Court.
Court. Thus, Thus, wewebelieve they are
believe they are
appropriately
appropriately addressed
addressed in official opinion
in an official opinion of
of the
the Attorney
Attorney General
General under
under
Iowa
Iowa Code section
section 13.2(e).
13.2(e).

We share
share your belief that
your belief that these important issues
these important issues require
require aa thoughtful
thoughtful
and detailed
detailed analysis.
analysis. Taken
Taken asas aawhole,
whole, the
the nine
nine questions
questions you
you pose
pose implicate
implicate
two
two central
central constitutional questions. Those
constitutional questions. Those two important questions
two important questions of
of law are:
law are:
First question: If
First question: If the
the governor
governor resigns,
resigns, does
does the
the lieutenant
lieutenant governor
governor
become governor?
governor?

Second
Second question: If the
question: If the lieutenant governor becomes
lieutenant governor becomes governor,
governor, may
may
she then
then appoint
appoint aa new
new lieutenant
lieutenant governor?
governor?
The
The answers to these
answers to these questions
questions must
must flow
flow from
from aa careful
careful consideration
consideration of
of
the succession framework
the succession frameworkset
set forth
forth inin the
the words and structure
words and structure of
of the
the Iowa
Iowa
constitution.
constitution. See Rudd v. v. Ray, N.W.2d 125,
Ray, 248 N.W.2d 125, 129
129 (Iowa
(Iowa 1976) ("The framers
1976) ("The framers
of
of our constitution
our constitution necessarily
necessarily gave
gaveus
us their
their ideas
ideas in
in the
the words
words they
they agreed
agreed
upon.").
upon."). The debates
The debates ofof the the 1857
1857constitutional
constitutional convention also
convention also shed
shed
important
important light light on the meaning
on the meaning andand intent
intent ofof thethe constitutional
constitutional provisions
provisions
establishing
establishing that that framework.
framework. See N. N. W.W.Halsey
Halsey 86 & CoCo v.
v. City
City of
of Belle Plaine, 104
Belle Plaine, 104
N.W.
N.W.494,494,496 496(Iowa
(Iowa1905)
1905)(noting
(notingthatthatreading
readingthe the constitutional
constitutional debates
debates may may
aid
aid in
in a fuller
fuller understanding
understanding of constitutional provisions).
of constitutional provisions). Finally, our answers
Finally, our answers
can
can andand should
should be be informed
informed by by interpretations
interpretations of the
of the samesame or or similar
similar
The Honorable
The Honorable David
DavidJohnson
Johnson
State Senator
State Senator
2
Page 2

provisions in
provisions in other
other states' constitutions. See Van
states' constitutions. Van Horn v. v. City
City of
ofDes
Des Moines,
Moines,
191
191 N.W.
N.W. 144,
144, 148
148 (Iowa
(Iowa 1922)
1922) (considering "similar provisions
(considering "similar provisionsinin the
of other
Constitution[s] of other states"
states" to decide an issue
issue of
of first impression).
first impression).
I. Background
Background

We first provide
We first provide context
context for
for the
the legal
legal questions
questions by identifying
identifying the
the relevant
constitutional provisions,
constitutional provisions,examining
examiningportions
portionsof of the
the 1857
1857 constitutional
constitutional
convention, and noting historical
convention, historical practice
practice both
both in
in Iowa
Iowa and
and on
on the
thefederal
federal level.
level.

A.
A. Provisions, Article
Constitutional Provisions.
Constitutional IV of
Article IV of the
the Iowa
Iowa Constitution
Constitution
establishes the executive
establishes branch and
executive branch and sets
sets forth
forth aaframework for the
framework for the succession
succession
executive power.
of executive power. Some
Some provisions
provisions of article IV have
article IV have been
been amended since
1857,
1857, but we we initially
initially focus
focus onon the
theoriginal
originalprovisions
provisions because
because those
those
established the original
established framework. In doing
original framework. doing so,
so, we consider all the original
we consider original
executive branch
executive branch provisions without placing undue significance
undue significance on one section.
section.
See Rolfe
Rolfe State Bank v. v. Gunderson,
Gunderson, 794 794 N.W.2d
N.W.2d 561,
561,565
565(Iowa
(Iowa2011)
2011)("[W]e
("[W]e
avoid placing undue importance on isolated portions of an enactment by
avoid placing undue importance on isolated portions of an enactment by
construing all parts ofof the enactment
enactment together.").
together."). WeWe also remain mindfulmindful not
to render any
any provision
provision meaningless
meaningless or redundant. See Iowa
or redundant. Iowa Code
Code 4.4(2)
4.4(2)
(2017)(presuming
(2017) (presuming eveiy
every piece of language
language is intended
intended to tobe beeffective); Real
effective); Mall Real
Estate, L.L.C.
Estate, L.L.C. v. City
City of Hamburg, 818 N.W.2d 190, 198 (Iowa 2012) ("We .. .. ..
ofHamburg, 818 N.W.2d 190, 198 (Iowa 2012) ("We
interpret statutes
statutes in
in such
suchaaway way that
thatportions
portionsofof it
it do
do not
not become redundant or
become redundant
irrelevant."); see also
also Junkins v. v. Branstad,
Branstad, 448 N.W.2d
N.W.2d 480, 483 (Iowa 1989)
480, 483 1989)
("Constitutionalprovisions
("Constitutional provisions arearegenerally
generally subject
subject to tothe
the same
same rules
rules of
of
construction as statutes.").

Considering article
Considering article IV IVas
as a
a whole promotes a
whole promotes a holistic
holistic understanding of of
the constitutional framework, because each provision can inform
constitutional framework, because each provision can inform the others. the others.
Iowa Code
See Iowa Code4.1(38)
4.1(38)("Words
("Wordsand andphrases
phrases shall
shall be
be construed according to
the context . . . .");
context . . . ."); see also Allen v. Clayton,
also Allen v. Clayton, 18 N.W. 663, 667
N.W. 663, 667 (Iowa
(Iowa 1884)
1884)
(noting that
(noting that toto determine
determine the the meaning
meaning of of aaconstitutional
constitutional provision,
provision, "the
sections preceding
preceding and following it, which
following it, which have
have reference
referenceto to the
the same
same subject-
matter, must
must be be read
read and considered"); State ex
andconsidered"); ex rel.
ret Martin
Martin v.v. Heil,
Heil, 77 N.W.2d
N.W.2d
375, 381 (Wis. 1942) ("[T]he provision should be examined in its setting in
375, 381 (Wis. 1942) ("[T]he provision should be examined in its setting
order to
order to find
find out
out .. .. .
. the
the real
realmeaning
meaning andand substantial
substantialpurpose
purpose of of those
those who
who
adopted it."). The following constitutional provisions are relevant to our
adopted it."). The following constitutional provisions are relevant to
analysis.

Article IV,section
Article IV, section 11 provides
provides that
that "The
"The supreme executive
executive power this
power of this
state shall
shall be vested in a chief magistrate, who shall be styled the governor of
be vested in a chief magistrate, who shall be styled the governor of
the state
state of Iowa." Iowa
of Iowa." Iowa Const,
Const. art.
art. IV,
IV,1.1. In other words, the
the person who
who has
has
the power isis governor.
governor. This section
section has
has remained unchanged since 1857.1857.
The Honorable
The Honorable David
DavidJohnson
Johnson
State Senator
State Senator
3
Page 3

Article IV,sections
Article IV, sections22 and
and 33 originally established that
originally established that the governor
governor and
lieutenant governor
lieutenant wouldbe
governor would be elected
elected byby the
the peoplebut
peoplebut notnot on
on the same
same
ticket. Article
ticket. Article IV,
IV, section 6 required
section 6 required candidates
candidates for both
both offices to have
offices to have the
same qualifications.

Article IV,section
Article IV, section 10 provided,
provided, "When
"When anyany office
officeshall,
shall, from
from any
any cause,
cause,
become vacant,
become vacant, and
and no
no mode
mode is provided by the Constitution
provided by Constitution and laws
laws for
for
filling such
filling such vacancy,
vacancy, the
the Governor shall have
Governor shall have power
power toto fill
fill such vacancy,
vacancy, by
granting a commission, whichwhich shall
shall expire
expire at
at the
the end of the next session of the
General Assembly, or or at
at the
the next
next election by the
the people."
people."

Article IV, section

Article IV, section 14 provided,
provided, "No
"No person
person shall,
shall, while
while holding
holding any
any office
office
under the authority
authority of
of the
the United
United States,
States, or
or this
thisState,
State,execute
execute the
theoffice
office of
of
or Lieutenant
Governor, or Lieutenant Governor, except as hereinafter
hereinafter expressly
expressly provided."
provided."

Article IV,section
Article IV, section 15
15 established
established that the
the lieutenant
lieutenantgovernor
governor would
would
serve until
serve until a successor
successor was
was elected
elected and qualified, and that
qualified, and that "while acting as
"while acting
Governor," the
Governor," the lieutenant
lieutenant governor would
would receive
receive the
the same
same pay as
as provided
provided for
the governor.
the governor.

Article IV,section
Article IV, section 17 provides.
provides,

In case
In case of
ofthe
thedeath,
death,impeachment,
impeachment,resignation,
resignation,removal
removal
from office,
from office,or
or other
other disability of the
disability of the governor, the powers
governor, the powers and
duties of the office forthe
office for the residue
residue of
ofthe
the term,
term, or
or until
until he shall be
acquitted, or
acquitted, or the
the disability
disability removed,
removed, shall
shall devolve upon the
devolve upon
lieutenant governor.
lieutenant governor.

section has
This section has remained unchanged since 1857.
1857.

Article IV,section
Article IV, section,18
18 made
made the lieutenant
lieutenant governor
governor President
President of the
Senate with
Senate with aa tiebreaking
tiebreaking vote,
vote, but
but provided
provided that
that "when
"when [the
[the lieutenant
lieutenant
governor] shall exercise the office of Governor, the Senate shall choose a
governor] shall exercise the office of Governor, the Senate shall choose
President pro tempore."
President

Article IV,section
Article IV, section 19
19 continued
continued the
the line
line of
of succession
succession beyond
beyond the
lieutenant governor:
lieutenant governor:

If the Lieutenant
Lieutenant Governor,
Governor, while acting as
while acting as Governor,
Governor, shall
be impeached, displaced,
be impeached, displaced, resign, resign, or die,
die, or otherwise become
or otherwise become
incapable of performing
incapable performingthethe duties
duties of the office, the President pro
office, the
tempore of
tempore of the
the Senate
Senate shall act asas Governor
Governor until the vacancy
vacancy is
filled, or
filled, or the
the disability
disability removed;
removed; and
and if
if the
the President of the
the Senate,
Senate,
for any
for any of of the
the above
above causes,
causes, shall
shall be berendered
rendered incapable
incapable of
of
The Honorable
The Honorable David
DavidJohnson
Johnson
State Senator
State Senator
4
Page 4

performing the
performing the duties
duties pertaining
pertaining to
to the
theoffice
office of Governor, the
the same
shall devolve
shall upon the
devolve upon the Speaker
Speaker of the House of Representatives.
Representatives.

Although each
Although each provision
provisionisis important,
important, article
article IV,
IV, section
section 1717 plays
plays the
biggest
biggest part
part in answering
answering both questions. "[T]he
"[T]he purpose of art.
art. IV,
17 is to
ensure that
thatthe
thecitizens
citizensof
ofIowa
Iowa are
are not
not without
without aa person
person capable
capable of performing
of performing
the constitutional
constitutional and statutory duties
duties imposed
imposed upon a a governor."
governor." 1980
1980 Op.
Op.
Atty Gen. 550,
Att'y 550, 1980
1980 WL 25903, at
WL 25903, at *3 (Iowa
(Iowa Att'y
Att'yGen.
Gen.Jan.
Jan. 2,
2, 1980).
1980).

Two
Two notable
notable aspects
aspects of
of article
article IV,
IV,section
section1717inform
informourouranalysis.
analysis. First,
First,
while death and resignation are permanent
while death permanentexits
exits from
from office, the phrase "other
office, the "other
disability"
disability"includes
includes temporaiy
temporary conditions
conditionssuch
such as
as physical or mental incapacity
or time spent
spent undergoing
undergoing aa medical
medical procedure.
procedure. See 1923 Op. Op. Att'y 263,
Att'y Gen. 263,
263 (Iowa Att'y Gen.
(Iowa Att'y Gen. Aug.
Aug. 23,
23, 1923)
1923) (answering a question posed by the
(answering a question posed by
governor
governor about
about the operation of article IV, section
section 17 during aa several-month
several-month
hiatus recommended
hiatus recommended by his physician). Therefore,
Therefore, article IV, section 17 must
section 17 must
operate within a framework
operate within framework applicable
applicable to several
several possible
possible factual scenarios
scenarios
without creating
without creating "friction in the machineiy of government." Fitzpatrick v.
"friction in the machinery of government." Fitzpatrick
McAlister,
McAlister, 248 P. 569,
569, 576 (Okla. 1926). Because
Because the
the provision
provision applies
applies equally
to permanent
permanent and temporary
temporary disabilities, so too
so too must the answers to the
the legal
legal
questions we address.
address.

The second
The second important
important aspect
aspect of
of article
article IV,
IV, section
section 17
17 is
is the
the word
word
"devolve." That word
"devolve." "is defined
word "is defined by
by lexicographers
lexicographersand and in in law
law dictionaries
dictionaries asas
meaning to
meaning roll or tumble
to roll tumble down
down or
or descend."
descend." Id. Id. at 573 (citing authorities
573 (citing authorities
indicating that meaning as
that meaning as of
of 1926); see also "Devolve," Black's
1926); see Black's Law Law Dictionary
Dictionary
(10th ed. 2014)
(10th ed. 2014) (defining "devolve"totoinclude
(defining "devolve" include transferring
transferring rights,
rights, duties,
duties, or
powers passing by
powers and passing bytransmission); "Devolve," Webster's
transmission);"Devolve," Webster's Third New Int'l
Third New Int'l
Dictionary (1993)
(1993) (defining
(defining "devolve"
"devolve"asas"to
"toflow
flowor orroll
rollfrom
from aa situation
situation viewed
viewed
as higher to one that
as higher that is
is lower" fall or
lower" and "to fall or be
be passed
passed .. . . .. as
as an
an obligation
obligation oror
responsibility"); 12
12 Words & Phrases 546 (1954). (1954). The overall concept
The overall concept is that is that
the word connotes downward
downward movement. This downward movement movement means means thethe
powers and duties
dutiesof of the office of Governor fall
the office of Governor fall upon the lieutenant governor;
the lieutenant governor;
the lieutenant governor does not rise to the
lieutenant governor the office
office of
of Governor.
Governor. See See Okla.
Okla. Op.
Op.
Att'y Gen. No.
Att'y No. 65-235, at 1-2 (Okla. Att'y Gen. May 19, 1965) ("The office
65-235, at 1-2 (Okla. Att'y Gen. May 19, 1965) ("The office of
of
Governor devolves
Governor devolvesuponuponthethe Lieutenant
Lieutenant Governor,
Governor, he he does
does not ascend to to it.").
it.").
distinction is
This distinction is both
both important
important and purposeful.
purposeful.

Viewing article
Viewing IVIVasasaa whole,
article. whole, section
section 11 and original
original section
section 18
18
complement
complementeach eachother
otherand
and dovetail
dovetailwith
withsections
sections1717and
and 19.
19. The words
The words inin
section 18 indicate
section indicate that
that when
when thethe powers
powers and
and duties
dutiesdevolved (as section
devolved (as section 17
17
instructed), the
the lieutenant
lieutenantgovernor would "exercise the office of Governor."
governor would "exercise the office of Governor."
That aligns with
with the foundational principle
principle that
that the person who
who has
has the
the power
power
governor.
is governor. Iowa Const.
Const, art. IV, 1.
1. The foundational principle is paramount.
principle is paramount.
The Honorable
The Honorable David
DavidJohnson
Johnson
State Senator
State Senator
5
Page 5

Sections 17
Sections 17 and
and 19
19 operate to ensure
operate to ensure that
that there
there is
is always
always aasuccessor
successor
designated to exercise
designated "powers and
exercise those "powers and duties"even
duties"even in in the
the absence
absence of the
lieutenant governor.
elected lieutenant governor.

Additionally, articleIV,
Additionally, article IV,section
section1414 is
is instructive
instructive because
because it
it expressly
expressly
permits one person to to hold
hold more
more than
thanone
oneoffice
office if the constitution
constitution provides
provides for
it. The
The1857
1857constitution
constitutionprovided
providedfor
fortwo
twopossibilities
possibilitiesimmediately
immediatelyfollowing
following
section 14,
section 14, both
both of
of which
which referred
referred specifically to the
specifically to the lieutenant
lieutenant governor:
governor: the
lieutenant governor
lieutenant governoras as governor
governorandand the
the lieutenant
lieutenant governor
governor asas senate
senate
president. See Iowa
president. Iowa Const,
Const. art. IV,
17-19 (original
(original 1857
1857 version).
version). Section
Section
19 further
further contemplated
contemplated other
other officials holding more
officials holding more than
than one
one office
office by
by
providingfor
providing forthe
thesenate
senate president
president as
as governor
governorand
and the
the speaker
speaker of
of the
the house
house as
as
governor.
governor.

B.
B. Constitutional Debates.
Constitutional Debates, The Iowa
The Iowa Constitution
Constitution of
of 1846
1846 made
made no
no
provisionfor
provision for aa lieutenant
lieutenant governor.
governor. However,
However, as the the 1857
1857constitutional
constitutional
convention began,
convention began, oneone delegate
delegate proposed
proposed thatthat aa committee
committee dedicated
dedicated to
formulating the
formulating the executive
executive branch of of government
government consider
consider "providing
"providing for for the
election of a a Lieutenant
Lieutenant Governor who, who, by virtue of his office, shall .. .. .. exercise
office, shall
all the powers
powers and have have the
the title
title of
of Governor
Governor inin case of the death,
death,removal,
removal, or
other disability
other disability of of the
theGovernor."
Governor." 1 The Debates of the Constitutional
The Debates of the Constitutional
Convention of
Convention of the
the State
State of
of Iowa 39 (W. BlairBlair Lord
Lord rep.,
rep., 1857)
1857) [hereinafter The
The convention
Debates]. The convention agreed to
Debates]. agreed to the resolution.
resolution. Id. Id. Accordingly,
Accordingly, the the
drafters of
of article IV, section
section 17 envisioned
envisioned that
that the
the lieutenant
lieutenantgovernor
governor wouldwould
"have the
"have the title
title of
ofGovernor"
Governor" ifif the
the governor
governor left
left office,
office, id.and utilized
utilized the word
"devolve"to
"devolve" toaccomplish
accomplishthatthat result. See Heil,
result. See Heil, 7 N.W.2d
N.W.2d at at 381-82
381-82 (recounting
similar debate from the Wisconsin constitutional
constitutional convention in 1847). 1847).

framers of
The framers of our
our 1857
1857 constitution
constitution also spent
spent significant
significant time debating
the constitutional line of succession.
constitutional line succession. Several
Several of
of the
the delegates
delegates questioned
questioned the
need for a lieutenant
lieutenant governor
governor at
at allpossibly because Iowa
allpossibly because Iowa had
had no
no lieutenant
lieutenant
governor before
governor before 1857and
1857andoffered
offeredamendments
amendmentsto toarticle
articleIV,
IV,section
section17.
17. For
instance, delegate Warren proposed
delegate Warren proposed anan amendment substituting the words
amendment substituting words
"Secretary of State" for "Lieutenant
"Lieutenant Governor."
Governor." 1 The Debates at at 587.
587. Delegate
Delegate
Clarke of
Clarke of Johnson
Johnson County^
County' proposed "that the
proposed instead "that the duties
duties of
ofthe
theoffice
office of
of
in case
Governor, in case of aa vacancy,
vacancy, shall
shall devolve
devolveupon
upon the
the president
president of the
the Senate."
The convention
Id. The
Id. actually passed
convention actually passed Clarke's
Clarke's amendment,
amendment, eliminating
eliminating the
position of
position of lieutenant
lieutenant governor
governorfrom
fromthe
the 1857
1857 constitution
constitution and
and altering
altering the
constitutional line of succession.
constitutional succession.

"There were
1 "There
1 were two
two men
men named
named Mr.
Mr. Clarke
Clarke and
and one
one named
named Mr. Clark
Clark at
at the
the Iowa
Senn, 882
convention." State v. Senn, 882 N.W.2d
N.W.2d 1,
1, 13
13 n.7
n.7 (Iowa 2016); see 1 The
2016); see The Debates, at 6.
Debates, at 6.
The Honorable
The Honorable David
David Johnson
Johnson
State Senator
State Senator
6
Page 6

The next
The next morning,
morning, however,
however, delegate Gray asked
delegate Gray asked his
his colleagues
colleagues "to
"to
consider well
consider well the
the importance
importance of the matter
matter before
before striking"
striking" the
the provisions
provisions
regarding
regarding the lieutenant
lieutenant governor.
governor. Id.
Id. at
at 591.
591. An
Anadvantage
advantage ofof retaining
retaining the
officewas
office was the
the fact
fact that
that the
the lieutenant
lieutenantgovernor
governor "will
"will be elected directly
directly by the
people, instead
instead of by the Legislature." Id. Gray found
the Legislature." Id. Gray found that that important because
"We all
"We all seem
seem toto agree
agree in
in placing elections, as
placing elections, as far
far as possible,
possible, directly in the
directly in the
power of thethe people." Id.
Id. Delegate Clarke of Heniy
Henry County agreed:
agreed:

Gentlemen [of[ofthe
the convention]
convention] do do not
not reflect
reflect that
that they may be
taking from
taking from the people
people the
the power
power of of selecting
selecting their
their own
own chief
chief
magistrate. When
When aamanmanisisaacandidate
candidateforforthe
theoffice
office of
of Lieutenant
Governor,
Governor, the
the people
people always
always vote
voteforfor him
him with
with the
the understanding
that circumstances
that circumstancesmay mayarise
arisewhich
whichwill
will make
make him
him their
theirGovernor.
Governor.
But if you give to the Senate the
give to the power of selecting
power of selecting the man who
who
may be the Governor
Governor of the the people, you
you take from
from the people
people this
power and
power and put
put it
it into
into the
the hands
hands of
of the Senate.
Senate.

Id. at
Id. at 591-92.
591-92.

Delegate
DelegateGray's
Gray'sremarks
remarkssparked
sparked renewed
reneweddebate
debateonon the
the subjeet,
subject, and
some delegates changed
changed their minds.
minds. ForForexample,
example,delegate
delegateWilson
Wilson offered that
offered that
although
although he
he had originally
had originally votedvoted to eliminate the position of lieutenant
eliminate the position of lieutenant
governor,
governor,"upon
"upon reflection
reflection.... .. the advantages inin favor
favor of [having
[having aa lieutenant
governor]
governor]are
arefar
far superior
superior to disadvantages." Id. at 593. Most
to the disadvantages." Id. at 593. Mostsignificant,
significant,
were Mr.
however, were Mr. Clark's
Clark's remarks:
remarks:

I voted
voted yesterday to strike
yesterday to strike out
out the
theoffice
office of
ofLieutenant-
Lieutenant-
Governor. I had
Governor. had not
notreflected
reflected upon
upon it
it well,
well, and I am inclined to the
opinion
opinion that
that 1I did
did not
not vote
voteright.
right. Upon hearing the
Upon hearing the argument
argument thus
thus
far upon the
the question,
question, and
and upon
uponreflection,
reflection, II am
am disposed
disposed toto favor
favor
the office of Lieut[enant]
office of Lieut[enant] Governor,
Governor,forforone
onereason,
reason, ifif there
there were no
other: I believe that an
believe that an executive
executive officer, whoeverhe
officer, whoever he may
may bebe that
that
shall perform
shall perform thethe duties
duties ofof that office, whether Governor or
that office, whether Governor or
Lieutenant-Gover
Lieutenant-Governor, ought to
nor, ought to be elected directly by the people, in
at least
all cases, at least so
so far
far as
asititisispossible
possible to
to provide
provide for it. We
We elect
elect
the Governor
Governor by by the direct
direct votes
votes of
of the
thepeopleby
peopleby the popular
popular
by the
willby thepopular
popularvoice.
voice. In case of of his
his removal
removal or
or disability,
disability, I
see no reason why the person
person filling his
his place should not
not be elected
directly by the
the whole
whole people
people as
as much as as the
the Governor himself.
Governor himself.
Id. at
Id. at 594.
594.

After some further

After some further debate,
debate, the convention voted 19-14
convention voted 19-14 against
against the
the
that would
amendment that would have struck the office of lieutenant governor. Id.
have struck the office of lieutenant governor. Id. atat
The Honorable
The Honorable David
DavidJohnson
Johnson
State Senator
State Senator
7
Page 7

595. Accordingly,
595. Accordingly, the convention also restored other provisions relating to
convention also to the
office of
office oflieutenant
lieutenant governor.
governor. See id. at
at 596.
596.

It is evident,
evident, both
both from
from this
this historical
historical record
record and
andbecause
because"[a]ll
"[a]ll policital
policital
power is
power is inherent
inherent inin the people," Iowa Const,
people," Iowa Const. art.
art. I,
I, 2,
2, that
thatthis
this"elective
"elective
principle"lies
principle" liesat
at the core
core of
of our
our constitutional
constitutional framework.
framework. The The framers
framers
intended that
intended that those
those in
in the
the gubernatorial
gubernatorial line
line of elected. Section
of succession be elected. Section
3 further
further reinforced
reinforced the
the framers'
framers' commitment
commitment to the the elective
elective principle
principle by by
that the
requiring that the lieutenant
lieutenantgovernor
governor "be elected."

C. Iowa
C. Iowa Historical
Historical Practice.
Practice. Four Iowa governors
governors have
have either
either resigned
or died while in
in office.
office. In 1877,
1877,Governor
Governor Samuel
SamuelKirkwood
Kirkwood resigned to become
a candidate
a candidate for
for the
the United
United States
States Senate.
Senate. Lieutenant
LieutenantGovernor
Governor Joshua
Joshua
Newboldassumed
Newbold assumedthe the powers
powers and
and duties ofof Governor upon the resignation.
Governor upon resignation.
Governor Albert
Governor AlbertCummins
Cumminsresigned
resignedinin 1908
1908 after
after his
his election to the United
election to United
States Senate. Lieutenant
LieutenantGovernor
Governor Warren assumed the powers
Warren Garst assumed powers and
duties of the
duties the Governor upon the
Governor upon the resignation.
resignation. InIn1954,
1954, Governor
GovernorWilliam
William
Beardsley was killed in an automobile accident.
Beardsley was killed in an automobile accident. Upon Upon his death, Lieutenant
death. Lieutenant
Governor Leo
Governor LeoElthon
Elthonassumed
assumedthethe powers
powers and
and duties of Governor.
Governor. Finally,
Finally, in
1969 Governor Harold Hughes resigned to take his
Governor Harold Hughes resigned to take his seat in seat in the United
United States
Senate. Lieutenant
Senate. LieutenantGovernor
Governor Robert Fulton
Fulton assumed the powers
powers and duties
duties of
of
the Governor upon the
Governor upon the resignation.
resignation.

In each of these four instances,

instances, the
the lieutenant
lieutenantgovernor
governor (upon whom
whom the
powers and
powers and duties
duties of
of the
theoffice
office devolved) was treated
devolved) was treated as
as Governor
Governor in every
every
respect, but did not
not appoint aa new
new lieutenant governor.
governor. InIn each
each of
of these four
instances, aa new
instances, new lieutenant
lieutenantgovernor
governor was
was eventually
eventually elected by popular vote
vote at
the same
same time
time the
the next
nextgovernor
governor was
was elected.

practice reveals
This historical practice revealsseveral
severalsignificant
significanttrends.
trends. First,
First, upon the
death or
or resignation
resignation of aa sitting
sitting governor,
governor, the lieutenant
lieutenant governor has always
governor has
been considered governor. Second,
considered governor. Second, the new
new governor appointed or
governor has never appointed
named aa new lieutenant governor.
new lieutenant governor.

D.
D. Federal Language
Federal Language and History. History. In In 1857,
1857, when
when the
the Iowa
Iowa
Constitution was
Constitution was ratified,
ratified, article
articleII,
II,section
section 1,
1, clause
clause 66 of the United
United States
Constitution read:
read: "In Case
Case of
of the
the Removal
Removal ofof the
the President
Presidentfrom
from Office,
Office, or of
of
his Death,
Death, Resignation, Inability to
Resignation, or Inability to discharge
discharge the Powers and Duties of the
Powers and
said Office,
Office, the Same shall devolve on the Vice President . . ..."." Thus,
the Same shall devolve on the Vice President . . Thus, article
article
IV, section
IV, section 17 of the
the Iowa
Iowa Constitution closely
closely tracked
tracked language
language inin the United
United
States Constitution at
States at the
the time.
time.

that federal
Under that federal language,
language, multiple
multiple presidents
presidentsdied
died in
inoffice.
office. Following
Following
each death, the Vice
death, the Vice President was considered
considered President in full. Two of these
in full. Two
The Honorable
The Honorable David
DavidJohnson
Johnson
State Senator
State Senator
8
Page 8

instances occurred
occurred before
before 1857: John
John Tyler
Tyler in 1841
1841 and
andMillard
Millard Fillmore
Fillmorc in
1850. Because
Because of
of this
this history,
history,the
thedelegates
delegates to
to the
the1857
1857Iowa
Iowa constitutional
constitutional
conventionlikely
convention likelyunderstood
understoodthe the word
word"devolve"
"devolve" totomean
meanthat
that upon
upon the
governor's exit from office, the lieutenant
office, the lieutenant governor
governor would
would be
begovernor
governorfollowing
following
a downward
a downward movement
movement of powers. See State v.
of powers. v. Baldon,
Baldon, 829 N.W.2d
N.W.2d 785, 785, 810
(Iowa 2013)
(Iowa 2013)(Appcl,
(Appel,J.,
J., specially
specially concurring)
concurring)(noting
(noting"the
"the drafters
drafters of the IowaIowa
Constitution were
Constitution were well aware" of
well aware" of existing
existing federal
federal law
law when
when writing
writing in 1857);
1857);
a Long,
Gallamo v. 243 N.W.
Long, 243 719, 723
N.W. 719, 723 (Iowa 1932) ("[HJistorical
("[H]istorical. ..... matters
matters may
taken into consideration when interpreting
be taken interpreting the
the Constitution.").
Constitution.").

A federalcourt
A federal court decision
decisionfrom
from 1867
1867confirms
confirmsthis
this understanding:
understanding:

Three times,
Three times, since
since the adoption
adoption of the the constitution,
constitution, the
president has died, and, under [article
died, and, under [article II, section 1,
1, clause 6], the
powers and duties
duties ofof the
the office
office of president have devolved
devolved upon upon the
the
vice president.
vice president. AllAll branches of of the government
government have, under under such
circumstances, recognized
circumstances, recognized the vicevice president as as holding
holding the theoffice
office
president,as
of president, as authorized
authorizedtotoassume
assumeitsitstitle
title. .. ..... It
It has
has never
never
been supposed
been supposed that,
that, under
under the
the provision
provision of the constitution,
constitution, the
vice president
vice president.. .. .. acted as the servant,
servant, or
or agent,
agent, or or locum tenens
the deceased
of the deceased president,
president, oror in
in any other capacity than than asas holding
holding
the office of president
office of president fully, for
for the
the time being, by virtue of express
emanating from the
authority emanating the United States.
United States.

Clinch, 17 F. Cas.
Merriam v. Clinch,
Merriam Gas. 68,
68, 70
70 (C.C.S.D.N.Y. 1867). The
(C.C.S.D.N.Y. 1867). The three
three instances
instances
to which
to which the
the court
courtreferred
referred were
were President
PresidentTyler,
Tyler, President
President Fillmore,
Fillmorc, and
Andrew Johnson in 1865.
President Andrew Johnson in 1865.

Likewise,the
Likewise, the Oklahoma
Oklahoma Supreme
Supreme Court
Court relied
relied upon federal
federal history
history
several decades
decades later
laterin
inanalyzing
analyzingthe
theword
word"devolve:"
"devolve:"

[U]ponthe
[U]pon the death of
of President
President Wm.
Wm. H.
H. Harrison,
Harrison, Vice
Vice President
President
Tyler became
lyier becamePresident
Presidentof
ofthe
theUnited
UnitedStates.
States. For almost a a century
this construction
this construction of the federal
federal Constitution
Constitution has stood
stood without
without
question. ItIthas
hasbeen
beenrecognized
recognized asas correct,
correct, and acquiesced in, not
only by
only by the
the departments
departments ofof state
state and all the states
states of
of the
the Union,
Union,
but officially recognized
but officially recognized by every civilized government in the world.
every civilized government in the world.

Defendant suggests
Defendant suggests that
that no court has
has ever
ever pronounced that
pronounced that
to be the law.
law. To
To our mind,
mind, itit is so clearly correct that
clearly correct that no one has
one
ever presumed
ever presumed toto test
test its
its correctness
correctness in in the
the courts. Therefore
Therefore it
should have greater weight than an ordinary
should have greater weight than an ordinary departmental departmental
The Honorable
The Honorable David
DavidJohnson
Johnson
State Senator
State Senator
9
Page 9

construction, not
not only
only because
because itit has
has stood
stood for almost a a century,
century,
but because
but because it
it has
hasbeen
beenrecognized
recognized asas the correct conception of our
the correct conception
system of government,
system government, and and because,
because, for
for eighty-five years under
eighty-five years
this construction, there has
has been
been no
no friction
friction in
in the
the machinery
machinery of
of
government byby reason
reason of
ofsuch
such construction.
construction.

Fitzpatrick,
Fitzpatrick, 248 P. at 576; see also
576; see alsoOlcott
Olcottv.v.Hoff
Hoff(Olcott
(Olcott I),
I), 181 P. 466,
466, 467 (Or.
467 (Or.
1919) ("[U]pon
("[U]ponthe thedeath
deathofofthe
thepresident
president no no one
one has
has ever claimed
claimed that
that thethe vice
vice
president .. .. ..would
would not
not succeed
succeed to to the
theoffice
office of president itself .. .. .. ."); 1939
1939
Mich. Atty
Att'y Gen.
Gen. Rep. 69,69, 73
73 (Mich. Att'y
AtPy Gen.
Gen. Mar.
Mar. 28,
28,1939)
1939)("No
("No one wouldwould
contend that upon
contend upon death
death ororresignation
resignation of of the
thePresident,
President, the
theVice
Vice President
President
does not thereby
does thereby become President of
become President of the United
United States . . . .").") Between
Between
Merriam in 1867 and Fitzpatrick in 1926, 1926, three
three more
more presidents
presidents died inoffice
died in office
and once
once again,
again, after each death,
death,the
thevice
vice President
President was
was considered President.2
considered President.^
The consistent
The consistent federal
federal understanding
understanding of of the
theword
word"devolve"
"devolve" over
over several
several
decades further informs
informs our
our determination
determination of
of what
what"devolve" means in
"devolve" means in article
article
section 17 of the
IV, section the Iowa
Iowa Constitution.
Constitution.

Moreover,President
Moreover, Presidentlyier
Tylerdid
didnot
notappoint
appoint aa new
new vice
vice president
president in
in 1841.
1841.
A new
A new vice
vice president did notnot take
take office
office until
until 1845,
1845,following
following the election
election of
of
George
GeorgeDallas
Dallastoto the
the office
officealmost
almostfourfouryears
yearslater.
later. In
In 1850,
1850,when
when Millard
Millard
Fillmore
Fillmoreassumed
assumedthe the powers
powers andand duties of of the
the presidency
presidency upon
upon Zachary
Zachary
Taylor's
Taylor's death,
death, he
he too
too did
did not
not appoint
appoint aa new
new vice
vice president.
president. Once
Once again, the
country waited for
for aa new
new vice
vice president
president for
for almost
almost three
three years
years until the election
King.
of William King.

practice continued
This historical practice continued upon the death
death of every President.
of every President. The
most recent instance occurred upon the the death of President John F.
death of President John F.Kennedy.
Kennedy.
President Lyndon
LyndonJohnson
Johnson did
did not
not appoint
appoint aa new
new vice
vicepresident
presidentinin1963.
1963. Our
nation's next
nation's next vice president, Hubert
vice president, Hubert Humphrey,
Humphrey, waswas elected in 1964.
1964.

Having
Having established
established this
this historical
historical perspective,
perspective,we
we now proceed to analyze
the legal questions.
questions.

II. If the Governor

II, Resigns, Does
Governor Resigns, Does the
the Lieutenant
LieutenantGovernor
Governor Become
Governor?
Governor?

Beyond
Beyond dictionary
dictionary definitions,
definitions, another
another important
important guidepost
guidepost inin
determining the meaning of "devolve"
"devolve"isiswhat
whatititwas
wasunderstood
understood to
to mean
mean at
at the
the
time it
time it was
was enacted:
enacted:

22 The
The three
three were
were President
President Chester
Chester Arthur
Arthur in
in1881,
1881,President
PresidentTheodore
Theodore
in 1901,
Roosevelt in 1901, and President
PresidentCalvin
Calvin Coolidge in 1923.
Coolidge in 1923.
The Honorable
The Honorable David
DavidJohnson
Johnson
State Senator
State Senator
Page 10

In the interpretation of the

the Constitution
Constitution ...
. . . we are to
we are to ascertain
ascertain the
meaning
meaning by by getting
getting atat the
the intention
intention of of those
those making
making the
the
instrument. What
What thought
thought was
was in
in the
the mind
mind of of those
those making
making the
Constitutionwhat was
Constitutionwhat was their
their intention,
intention, is
is the great
great leading rule of
of
construction.
construction.

parte Pritz,
Ex parts Pritz, 99 Iowa 30,
30, 32
32 (1858);
(1858); accord Griffin v. Pate,Pate, 884
884 N.W.2d 182, 186
N.W.2d 182,
(Iowa 2016)
(Iowa 2016)(beginning
(beginninganalysis
analysis of of aa constitutional
constitutional provision
provision "by looking
looking back
to review
review thethe history"
history" of
ofitit"to
"to gain
gain aa better
better understanding of the concept" as as
applied in
applied in a current
current case);
case); Redmond v. Ray, Ray, 268
268 N.W.2d 849, 853
N.W.2d 849, 853 (Iowa 1978)
1978)
("In construing
("In construingaa constitution,
constitution,our our purpose
purposeis is to
to ascertain
ascertain the
the intent of the
framers."). The
framers."). The framers of of our
our 1857
1857 constitution
constitution werewere undoubtedly
undoubtedly aware
aware ofof
precedent under
the federal precedent under thethe"devolve" framework. This federal
"devolve" framework. federal practice,
practice, and
and
the framers'
framers' resolution
resolution that the the lieutenant
lieutenant governor
governor could "have the title
could "have title of
of
Governor" if if the
the governor left office, 1 The Debates at at 39,
39, are strong
strong indications
that the
that theverb
verb "devolve" was thought
"devolve" was thought to to convey
convey the
the entire
entireoffice
office of Governor
Governor upon
upon
lieutenant governor.
the lieutenant governor.

A. Other States'
A. Other States' Experiences.
Experiences. IowaIowaisis not
not the
the first state to
to face
face
significant legal
significant legal questions
questions regarding
regarding aa governor's
governor's permanent departure from from
office. While
office. While other
other states'
states' constitutions
constitutions and
and experiences
experiences do do not
not alone
alone
determine what the Iowa
determine Iowa Constitution means, see Handeland
Constitution means, Handeland V. Brown, 216
v. Brown,
N.W.2d574,
N.W.2d 574, 577
577 (Iowa
(Iowa 1974),
1974),wewefind
findvaluable
valuableto
to our
our analysis
analysis the language
language
used
used in those
those states' constitutions and court decisions or attorney general
states' constitutions and court decisions or attorney general
involvingthat
opinions involving that language.
language.

Our review
review of of available
available authority
authority reveals
reveals a a relatively even divide.
relatively even divide. When
When
the relevant
the relevant constitutional
constitutional provision
provision utilized
utilized the the word
word"devolve,"
"devolve," somesome
authorities in
authorities in other
other states
states havehave concluded
concluded that that the
thelieutenant
lieutenantgovernor
governor
governor. In view
becomes governor. view of of the
the question
question as as we have
have phrased it, it, we
we call these
decisions. See, e.g., Bryant
the "yes" decisions. Bryant v. English, 843 S.W.2d
v. English, S.W.2d 308,308, 311
311 (Ark.
(Ark.
1992) ("[W]e
("[W]ehold holdthat
that...... the
the Lieutenant
Lieutenant Governor serves as
Governor serves as Governor
Governor for for the
the
residue of the term
residue ."); State ex
term ......."); ex rel.
rel Lamey Mitchell, 34 P.2d
Lamey v.v.Mitchell, P.2d 369, 370
(Mont. 1934) ("[W]hen
(Mont. ("[W]henthe theGovernor
Governorresignsresigns or or is
is permanently
permanently removed
removed from
office,there
office, there isis no
no vacancy
vacancy in in the
the office
officeof ofGovernor
Governorininthe thesense
sensethat
that there
there is
is no
one left with
one with power
power to discharge
discharge the the duties
dutiesimposed
imposed uponuponthe theGovernor.");
Governor.");
Fitzpatrick, 248 P. at
Fitzpatrick, at 577
577 ("Mr. Trapp is
("Mr. Trapp is just
just as
as much
much aaGovernor,
Governor, in in every
every
literal and
literal and practical sense and
practical sense and effect,
effect, asas though
though he had been been elected
elected toto the
office."); Chadwick v. Earhart, 4 P.
v. Earhart, P. 1180,
1180,1181 1181 (Or.
(Or.1884)
1884)("[I]t is not shown
("[I]t is shown
. . . . aa person
how .... personcan canfill
fillthe
theoffice
office of
ofgovernor
governor without
withoutbeing
being governor.");
governor."); State
ex rel.
rel Murphy v. v. McBride,
McBride, 70 P.
P. 25, 26 (Wash. 1902)("The constitution having
25, 26 (Wash. 1902) ("The constitution
provided that
provided that in case of of the death
death of of the
the governor
governor the the duties
duties of
ofthe
the office
office shall
devolveupon
devolve upon the the lieutenant
lieutenant governor,
governor,there there isis no vacancy
vacancy in the the office
office of
of
governor."); 1939
governor."); 1939 Mich.
Mich.AtfyAtt'yGen.
Gen. Rep.
Rep. at at 73 (concluding
(concluding when the the governor
governor
The Honorable
The Honorable David
DavidJohnson
Johnson
State Senator
State Senator
Page 11

dies, the lieutenant

lieutenant governor is "governor
governor is "governorof
ofthe
the state
state [for]
[for] all
all intents
intents and
purposes").
purposes").

Others have concluded that

have concluded that the
the lieutenant
lieutenant governor
governor or nextnext person
person "in
is not truly governor. We
line" is We call these
these thethe "no"
"no" decisions.
decisions. See, e.g., State ex
De Concini v. Garvey,
rel. De Garvey, 195 P.2d 153, 153,154154(Ariz. (concluding the
(Ariz. 1948)(concluding the person
upon whom
whom the powerspowers andand duties
dutiesof ofgovernor
governor devolve
devolve after
after the
the governor's
governor's
death oror resignation
resignation "is
"is not
notgovernor
governor de de jure
jureororde defacto
factobut
butmerely
merelyex exofficio");
officio");
Oldham, 155 S.W. 502,
Futrell VV. Oldham, 502, 504
504 (Ark. 1913)(concluding
(concluding under
under a a previous
version of
version of the
the Arkansas
Arkansas Constitution
Constitution that that the person
person upon
upon whomwhom the the powers
powers
and duties
duties ofof governor devolve"acts
governor devolve "acts asas Governor
Governor.. .. .. merely virtue of his
merely by virtue
office as
office as president of the senate,
senate,andanddoes doesnot notactually
actuallybecome
becomeGovernor");
Governor");
People ex
People ex rel.
rel. Lynch
Lynch v.
v. Budd,
Budd, 4545 P.
P. 1060,
1060,10601060(Cal.
(Gal.1896)
1896)("[I]t would hardly
("[I]t would hardly be
contended that when
contended when thethe powers
powers andand duties
dutiesof ofthe
thegovernor
governor devolve upon the
devolve upon
lieutenant governor
governor the the latter thereby
thereby becomes
becomes governor
governor .. .. .. .");
."); State ex
ex rel.
rel
Hardin v. Sadler,
Sadler, 4747 P.
P. 450,
450,450450(Nev.
(Nev. 1897)
1897) ("If
("If aa vacancy occurs in the the office
office
governor, the
of governor, the powers
powers and and duties of of the
the office
office devolve
devolve uponupon thethe lieutenant
governor.. .. .. .. The
governor Theofficer
officer remains
remains lieutenant
lieutenant governor,
governor, but but invested with with the
powers and duties
powers dutiesof ofgovernor.");
governor."); State v. v. Heller,
Heller, 42 A. A. 155,
155, 157
157 (N.J.
(N.J. 1899)
1899)
("Thelanguage
("The languageused usedisisnot
notambiguous.
ambiguous. It It declares
declares thatthat the powers, duties,
duties, and
emoluments of
emoluments of the
the office shall devolve
office shall devolveon onthethe president
president of of the
the senate;
senate; it does
not confer upon him him the
thetide
titleof
ofthe
theoffice.");
office."); State ex ex rel.
rel Martin
Martin v. v. Ekem,
Ekem, 280
N.W. 393,
N.W. 393, 399 (Wis.(Wis. 1938)
1938) ("[T]he lieutenant governor
("[Tjhe lieutenant governor doesdoes notnot become
become
governor. He
governor. He remains
remains lieutenant
lieutenantgovernor,
governor, upon upon whom whom devolves
devolves the powers
powers
and duties
and dutiesof ofgovernor.").
governor.").

B. Analysis,
B. Analysis. TheThe substantial
substantial number
numberof of"no"
"no" decisions
decisions is is significant.
significant.
"no" decisions
The "no" decisions are
are based on aa careful
careful parsing
parsingof
ofthe
theword
word "devolve"
"devolve" andand the
the
other relevant constitutional language.
other relevant constitutional language. When resolving legal questions,
When resolving legal questions,
precision and
precision matter. See Rivera v. Woodward
and nuance matter. Woodward Res.Res. Ctr., 865 N.W.2d
Ctr., 865 N.W.2d
887, 897
887, 897 (Iowa 2015). Thus,
(Iowa 2015). Thus,placing
placing Iowa
Iowa among
among the
the "no"
"no" decisions
decisions would be
legally defensible.
legally defensible. Indeed,
Indeed, inin 1977,
1977,thetheIdaho
IdahoAttorney
AttorneyGeneral
Generalacknowledged
acknowledged
that, although he believed them to be somewhat counterintuitive, the
that, although he believed them to be somewhat counterintuitive, the "no"
"no"
suggested "the
decisions suggested "the lieutenant governor never truly succeeds
lieutenant governor succeeds to to the
the office
office
of governor"
governor"underunderthe
the Idaho
Idaho Constitution
Constitution(which
(whichat at the
the time
time used the word word
"devolve"). Idaho
"devolve"). Idaho Op. Atty
Att'y Gen. No. 77-1,
77-1, 1977
1977 WL 25063, at
WL 25063, at*1*1 (Idaho Att'y
Att'y
Gen. Jan.
Jan. 4, 1977). The Idaho Attorney General
4, 1977). The Idaho Attorney General went on to recommend
recommend that that
only the Idaho Supreme
only Supreme Court
Court could
could answer
answer the
the question
question definitively
definitively as as a
matter
matter of Idaho law.
of Idaho See id.
law. See id.

Nonetheless,
Nonetheless, wewe find
find the
the "yes"
"yes" decisions
decisions more
more persuasive
persuasive than
than the "no"
decisions for
for several
several reasons.
reasons. First,
First, we believe the "no" decisions elevate
we believe the "no" decisions elevate form
over substance,
over substance, which
which the Iowa
Iowa Supreme
Supreme Court
Court has
hasrepeatedly
repeatedly cautioned
cautioned
against. See, e.g., Lewis v.
v. Jaeger, 818 N.W.2d 165, 179
Jaeger, 818 N.W.2d 165, 179 (Iowa 2012); State ex
2012);
The Honorable
The Honorable David
DavidJohnson
Johnson
State Senator
State Senator
Page 12
12

Miller v.
rel. Miller v. Smokers
Smokers Warehouse
Warehouse Corp., 737 N.W.2d
Corp., 737 N.W.2d 107,
107, 110
110 (Iowa 2007);
2007); Van
Baale v. City
Baale City of ofDes
DesMoines,
Moines, 550 N.W.2d 153, 156
N.W.2d 153, 156 (Iowa
(Iowa 1996).
1996). The The "no"
"no"
decisions are somewhat technical, drawing
decisions drawing a linguistic distinction that, while
distinction that, while
noteworthy, makes
noteworthy, makes no no substantive
substantive difference under the
difference under the circumstances
circumstances
presented here.
presented here. See Harriman
Harriman V. State, 2 Greene
v. State, Greene 270,
270, 285
285(Iowa
(Iowa 1849)
1849)
(consideringitit the
(considering the court's
court's "imperative
"imperativeduty" duty"toto"disregard
"disregard. ... .. unmeaning
unmeaning
technicalities, and to look more more toto the
the substance
substance and
and merits
meritsof
ofeach
each case");
case"); see
also Heil,
Heil, 77 N.W.2d
N.W.2d at at 381 ("It
("It is
is extremely important in
extremely important in the interpretation of of
constitutional provisions
constitutional provisionsthatthat we
we avoid
avoid determinations based purely
determinations based purely on on
technical .. .. .. argument and that
technical that wewe seek to discover the true
discover the true spirit and
and intent
of the provisions examined."). Under
provisions examined."). Under Iowa's framework,
framework, there
there could
could be little
little
dispute that
dispute that if if the
thegovernor
governor resigns,
resigns, thethe lieutenant
lieutenantgovernor
governor would
would possess
possess
authority to sign
authority sign legislation,
legislation, issue pardons,
pardons, and
and even
even receive
receive the
the governor's
governor's
salary. Instead,
Instead,any anydispute
disputecenters
centerson onthe
theexact
exactdescription
description of
of his or her new
role.
role.

On that
On that score,
score, article
article IV,
IV, section
section 1 1 of
of the
theIowa
Iowa Constitution
Constitution carries
carries
significant weight. That
Thatsection
section provides,
provides,"The supreme
supreme executive
executive power of thisthis
state shall
shall be
be vested
vested inin aachief
chiefmagistrate,
magistrate,who who shall
shall be
be styled
styled the
the governor
governor ofof
the state
state of Iowa." Iowa
of Iowa." Iowa Const,
Const. art.
art. IV,
IV,1.1. In
In other words, the the person who
who has
has
the power
power isis governor.
governor. As As the
the Arkansas
Arkansas Supreme
Supreme Court concluded under a
concluded under
similar provision
similar provision in in the
the Arkansas
Arkansas Constitution,
Constitution, thisthis means when when the
the powers
powers
and duties
duties ofof governor devolveupon
governor devolve upon thethe lieutenant
lieutenant governor,
governor,that that person
person is
thereafter styled
thereafter styled the
the governor.
governor. See Bryant, Bryant, 843 843 S.W.2d
S.W.2d at at 313;
313; accord
Fitzpatrick, 248
Fitzpatrick, 248 P. at at 572
572 ("The
("The person
person who who .. .. ..fills
fillsthe
theoffice
office of
of chief
chief
magistrate
magistrate is styled 'the Governor
styled 'the Governor of of Oklahoma.'
Oklahoma.' He He is
is the
the 'Governor'
'Governor' for the
simple reason
simple reason that
that he
he governs.").
governs."). Thus,
Thus,therethere isisno
nosubstantive
substantivedifference
difference
between governor
governor andand acting
acting governor.
governor. See StateState ex
ex rel.
rel. Chatterton
Chatterton v. Grant, 73 73
470, 474
P. 470, (Wyo. 1903)
474 (Wyo. 1903)(concluding
(concludingthat,that, after
after the
the governor
governor died,
died, the
the question
whether
whether a person
person "[wa]s
"[wa]s in in fact the
the governor
governor of of the
the state"
state" was
was immaterial
immaterial
because, whether governor
because, governor or or acting
acting governor,
governor,the the person
person hadhad the powers and
duties of the office).
duties office). A A person
person acting
acting asasgovernor
governor after
after the
the powers
powers have
have
because of
devolved is governor, because of article IV, section
section 1.3
1.^

Second, the
Second, the "yes"
"yes" decisions
decisions comport with the
comport with the Iowa
Iowa framers'
framers'
understanding of the lieutenant
lieutenant governor's role and
governor's role and with
with our state's
state's historical
historical
practice. In
practice. Increating
creatingthe
theoffice
office of
oflieutenant
lieutenantgovernor,
governor, the
the framers
framers expected
expected
that person
that person toto "have
"have the
the title
title of
ofGovernor"
Governor" if the governor left office.
governor left office. 1 The
Debates at 39. Furthermore, each time the governor of Iowa has resigned
at 39. Furthermore, each time the governor of Iowa has resigned or

33 This office's 1923 opinion

office's 1923 opinion acknowledges,
acknowledges,asasititmust,
must,that
that in
in some instances
the powers and duties
duties will devolveonly
will devolve onlyononaatemporary
temporarybasis.
basis. To
To the
the extent
extent the
the 1923
opinion describes acting as governor to to be substantively
substantively different governor,
different from being governor,
we now
now clarify
clarifythat
that issue.
issue.
The Honorable
The Honorable David
DavidJohnson
Johnson
State Senator
State Senator
Page 13

died in office,
office, the
the lieutenant governor was thereafter treated as
lieutenant governor as governor.
governor. See
William
William H. Fleming,
Fleming, The Second Officer
Officer inin the Government, reprinted in
Government, reprinted in Annals
of
of Iowa: Historical Quarterly,
Iowa: A Historical Quarterly, Vol.
Vol. XIII,
XIII,No.
No.1,1, at
at 533-34 (1921) [hereinafter
533-34 (1921)
Annals of
Annals ofIowa] (recalling Governor
Iowa] (recalling GovernorKirkwood's
Kirkwood'sresignation
resignationinin 1877
1877 and
Governor Cummins's
Governor Cummins's resignation
resignation in 1908);1908); Legis.
Legis. Servs.
Servs.Agency,
Agency, Pieces of
Pieces of
Iowa's Past:
Iowa's Past: Lieutenant
Lieutenant Governors
Governors Who Who Have
Have Become
Become Governor
Governor 2-3 (Mar. 8, 8,
2017),
2017), available at https: / / www. legis. iowa. goy/ does / publications / TB /
https://www.Iegis.iowa.gov/docs/publications/TB/
855445.pdf (noting
855445.pdf (noting Governor
Governor Beardsley's
Beardsley's death
death inin 1954 and Governor
Governor Hughes's
resignation in
resignation in 1969).
1969). Indeed,
Indeed,one onehistory
historyofofIowa
Iowareferred
referredtotoKirkwood's
Kirkwood's
successor as
successor asthe
the"ninth
"ninthgovernor
governorof ofIowa"
Iowa" following Kirkwood'sresignation.
following Kirkwood's resignation. 4
Benjamin F. Gue,
Benjamin Gue, History
History ofof Iowa:
Iowa: From
From the
the Earliest
Earliest Times to the Beginning of of
the Twentieth
Twentieth Century
Century 199-200 (1903). Although historical
(1903). Although historical practice
practice standing
alone
alone does
does not mandate a similar
not mandate similar result
result now,
now, the
the historical
historical practice
practice is
consistent with the framework of executive
consistent with the framework of executive power we have described. Gallamo,
described. Gallarno,
243 N.W.2d
N.W.2d at at 723
723 (noting
(noting history
history is is important in interpreting
interpreting constitutional
constitutional
provisions); see Bryant,
Bryant, 843 S.W.2d
S.W.2d at 312 (finding
at 312 (finding itit "of
"of some
some persuasion"
persuasion"
that, when
that, when the
the governor
governor of Arkansas died in office or resigned,
office or resigned, thethe lieutenant
lieutenant
treated as
governor was historically treated as governor).
governor).

Finally, many
Finally, many ofof the
the "no"
"no" decisions
decisions are
are driven
driven by legal
legal problems
problems that
Iowa's framework
Iowa's frameworkavoids.
avoids. For example, in Arizona, the court
Arizona, the court concluded
concluded one
reason the secretary
reason secretary of state did
did not
not become
become governor was the
governor was the absence
absence of a
bestowing upon
provision bestowing upon that
that person
person"the
"theemoluments
emolumentsof ofthe
theoffice
office of
of governor
governor
.. .
. ..when
whenacting
acting[as]
[as]governor." Garvey, 195
governor." Garvey, P.2d at
195 P.2d at 157-58.
157-58. By By contrast,
contrast,
article IV, section
article section 15 of
of the
the Iowa
Iowa Constitution
Constitution expressly
expressly provides
provides that
that "while
"while
acting as governor,"
acting the lieutenant
governor," the lieutenant governor
governorisis"paid
"paidthe
the compensation
compensation.... ..
prescribed for the governor." IowaIowa Const.
Const, art.
art.IV,
IV, 15.
15.

Likewise,the
Likewise, the Arkansas
Arkansas Supreme
Supreme Court
Court expressed concerns in Futrell
expressed concerns
about the
about thepresident
presidentofofthethesenatea
senatea legislative
legislativeofficerperforming
officerperforming executive
executive
branch duties. See See Futrell,
Futrell, 155 S.W.
S.W. atat 504; see also Bryant,
also Bryant, 843 S.W.2d
S.W.2d at
312 (explaining
312 (explaining that
that creating thethe position
position ofof lieutenant
lieutenantgovernor
governor alleviated
alleviated any
separation-of-powersconcerns).
separation-of-powers concerns). Iowa's
Iowa's framework
framework has has always
always avoided that
avoided that
problem. Article
Article III, section
section 11 permitted the lieutenant
lieutenantgovernor
governor toto preside
preside over
the senate
senate by allowing one person to perform both legislative and executive
by allowing one person to perform both legislative and executive
duties where expressly provided.
where expressly provided. Further, under the the 1857
1857 constitution,
constitution, when
when
the lieutenant governor
lieutenant governor was also president
president of the senate,
senate, article IV, section 18
article IV, section
directed the
directed the senate
senate to elect
elect aa president
president pro pro tempore
tempore whenwhen thethe lieutenant
lieutenant
governor was
governor was exercising
exercisingthe the office
officeofofgovernor.
governor. AndAnd today,
today, the lieutenant
lieutenant
governor no
governor no longer
longer has
has any legislative duties, so
legislative duties, so there is is no
noseparation-of-
separation-of-
powers problem.
powers problem. Without
Without potential
potential issues likelike those
those faced
faced in
in Arizona
Arizona and
Arkansas,
Arkansas, wewe find the "yes" decisions to be
decisions to be a a better analytical guide.
analytical guide.
The Honorable
The Honorable David
David Johnson
Johnson
State Senator
State Senator
Page 14

Iowa's amendments
Iowa's amendments to to article
article IV
IV dodo not
not change
change or
or alter our analysis
analysis of
of
the effect of article
article IV,
IV,section
section 17.
17. A
A 1952 amendment
amendment to to article
article IV,
IV, section 19
removed a
removed a reference toto the lieutenant
lieutenant governor
governor "acting
"acting as"
as" governor,
governor, replacing it
with
with "if there be be aavacancy
vacancyin inthe
theoffice
officeofofGovernor"and
Governor"and that that language
language
remains today.
remains today. There
There isis aanatural
naturaltendency
tendencyto toascribe
ascribesignificance
significance toto the
change, but
change, but that
that amendment
amendment doesn't really say
doesn't really say much
much about
about the title of the
person upon
upon whom
whom thethe powers
powers andandduties
dutiesdevolvebecause
devolvebecause article
article IV,
IV, section
1 controls that
that question. And And ininany
anyevent,
event,as aswe
wehave
haveexplained,
explained, "acting as"
governor is
governor is simply
simply what
what the
the lieutenant governor does when
governor does when the powers
powers and
duties devolve,
duties not aa substantive
devolve, not substantive limit on his his or
or her
her power
power or title.

The more
The more significant
significant piece
pieceofofthe
the 1952
1952 amendments,
amendments, in in our view, was a
view, was
section providing that if
providing that if the
the governor-elect
governor-e/ect died, resigned, or failed
failed to qualify,
qualify,
the lieutenant
the lieutenant governor-elect
governor-elect wouldwould"assume
"assumethe the powers
powers and and duties
duties of of
governor"upon
governor" uponinauguration.
inauguration. As As we
we have
have noted,
noted, article
article IV,
IV, section
section 11 would
would
therefore make
therefore make the
the person
person with
with the
the powers
powers the
the governor.
governor. In other words, the
1952
1952 amendment
amendment solidifiednot alteredthe existing
solidifiednot alteredthe existing framework
frameworkfor for the
transfer of
transfer of executive power in
power in thethe event of a constitutional contingency.
a constitutional contingency.^ 4

In 1972,
1972, several
several provisions
provisions of artiele
article IV
IV were
werechanged,
changed,but
but they
they did
did not
affect sections
affect sections 11 or
or 17. Originally,
Originally, article
article IV, sections
sections 2
2 and 33 provided
provided the
governor and
governor and lieutenant
lieutenant governor
governor served
served two-year
two-year terms.
terms. The 1972
The 1972
amendment merely
amendment merelyincreased
increasedboth
bothterms
termstotofour
fouryears.
years. Thus, itit does
does not
indicate any significant change
change in
in the constitutional
constitutional framework for transferring
transferring
executive power.
executive power. Indeed,
Indeed, the
the 1972 amendments
amendments retained
retained the
the requirement that
that
the governor and lieutenant
governor and lieutenant governor
governor be be elected,
elected,and
and that
that they serve
serve until
successors were
successors were elected and
and qualified.

Iowa enacted
Iowa enacted more
more signifieant
significantamendments
amendments in in1988.
1988. TheThe 1988
1988
amendments provided for the first
amendments provided for the first time time that the governor and lieutenant
the governor and lieutenant
governor are
governor are elected
elected together,
together, on one ticket,
ticket, "as
"as if
if these
these two
two offices
offices were
were one
and the
the same."
same." Iowa
Iowa Const.
Const, art.
art.IV,
IV, 3.3. Before
Before 1988,
1988,it it was
was possible
possible for the
governor and
governor and lieutenant
lieutenant governor
governor to to represent
represent different
different political
politicalparties.
parties. The
The
amendment brought to fruition
amendment brought to fruition a constitutional
constitutional delegate's statement at the
delegate's statement at
1857
1857 convention: "The governor
convention: "The governor and lieutenant-governor
lieutenant-governor will will always,
always, I
presume, be the
presume, be the samesame in politics,
politics, and why
why not have
have the successor of the
the successor
governor of
governor of the
the same
same politics, instead of bringing
politics, instead bringing in in one of the
the antagonistic
antagonistic
at 593.
Debates at
party?" 1 The Debates
party?" 593.

44 Additionally, GovernorBeardsley's
Additionally, Governor Beardsley'sdeath
deathoccurred
occurredinin 1954,
1954, after
after the
the 1952
1952
amendmentsbut our our state's
state's practice
practice of
of treating
treating the
the lieutenant
lieutenantgovernor
governor as
asgovernor
governor
remained the
remained the same.
same.
The Honorable
The Honorable David
DavidJohnson
Johnson
State Senator
State Senator
Page 15

The 1988
The 1988 amendments
amendments also also recast
recast the
the lieutenant
lieutenantgovernor's
governor's duties.
duties.
original article
Under original article IV,
IV, section
section 18,
18, the
the lieutenant
lieutenant governor
governor was president
president of
of
the senate and
and possessed
possessed aa tiebreaking
tiebreaking vote. IfIfthethelieutenant
lieutenantgovernor
governor was
was
absent, impeached,
impeached, or or exercising the office
exercising the of Governor,
office of the Senate
Governor, the Senate was
was
instructed to
instructed to choose
choose a a president
president pro
pro tempore
tempore to to preside
preside and
and break
break ties.
ties.
However,
However,the the 1988
1988 amendments
amendments revised
revised article
article IV,
IV, section
section 18
18 to
to provide
provide that
that
lieutenant governor
the lieutenant "shall have the
governor "shall the duties
duties provided by law
provided by law and
and those
those duties
the governor
of the assigned to
governor assigned to the
the lieutenant
lieutenant governor
governor byby the
the governor."
governor." In
In other
words, the 1988
words, the 1988 amendments
amendments removed
removed the the lieutenant
lieutenant governor's status as
governor's status
president of the
president the Senate.
Senate.

only remaining duty "provided

The only "provided byby law"
law" isis to
to receive
receive the
the powers
powers and
duties of
of governor
governor under article
article IV,
IV, section
section 17
17 ififthe
thegovernor
governorleaves
leaves office;
office;
there are no additional statutory
statutory duties
duties imposed
imposed upon
upon the the lieutenant
lieutenantgovernor.
governor.
In other
other words,
words, the
the lieutenant
lieutenantgovernor
governor becomes
becomes governor
governor because he or she is
lieutenant governor. As
already lieutenant As the Montana Supreme Court put put it:

When
When the the framers
framers ofof the
the Constitution
Constitution provided for the
provided for
election of
election of aa Governor and a
Governor and a Lieutenant
Lieutenant Governor as members
Governor as members of of
the executive
the departmentof
executive department ofthethe state,
state, but
but conferred upon the
conferred upon
latter no
latter no executive poweror
executive power or authority
authorityother
otherthan
than inin the
the
contingenciesmentioned
contingencies mentioned. ..... ,, they manifested the intention
manifested the intention that
that
the people
people elect two
two qualified heads of that
qualified heads that departmentthe
departmentthe one
active, the
active, the other
other his lieutenant,
lieutenant, ready
ready at aa moment's
moment's notice
notice to
assume the
assume the duties
dutiesof
ofthe
theoffice,
office, should
should his
his superior
superiorofficer,
officer, for any
reason, either
reason, either temporarily
temporarily or permanently,
permanently, become unable to
become unable
perform them.
perform them.

Mitchell, 34 P.2d
Mitchell, P.2d at 371-72; see also
at 371-72; also State
State ex
exrel.
ret Sathre
Sathre v.v.Moodie, 258 N.W.
Moodie, 258 N.W.
558, 567
558, 567 (N.D. 1935) ("The
("The Lieutenant
Lieutenant Governor,
Governor,elected
electedat at the
the same election,
election,
. . . . has
.... has been
been chosen
chosen byby the
the people
people to
to act
act as
asGovernor
Governor in in [the]
[the] event
event the
fails to
Governor fails to qualify,
qualify, or
or is
is unable
unable to act
act because
becauseof disability."); Olcott 7,
ofdisability."); I, 181
at 483
P. at 483 ("[W]hen
("[Wjhen thethe people
peopleelected
electedMr.
Mr.Olcott
Olcott. .....,, by
by the
the very terms of the
veiy terms
constitution they elected him to to become
become governor
governor upon the the death
death ofofGovernor
Governor
Withycombe.");
Withycombe."); Heil,Heil, 7 N.W.2d
N.W.2d at 383 383 (noting
(noting the
the lieutenant
lieutenantgovernor
governor "was
"was
deliberatelychosen
deliberately chosenby bythe
the people
peopleforfor no
no other
other important
important purpose
purpose than
than to
substitute for
substitute for the
the governor").
governor"). Therefore, the the 1988 amendments
amendments do not alter our
analysis on this question.
question.

Answer. After
C. Answer. considering the
After considering the Iowa
Iowa Constitution's language and
Constitution's language
structure, placing
placing it in
in historical perspective, and comparing other
historical perspective, and comparing other legal
legal
analyses on
analyses on similar
similar constitutional provisions,ititis
constitutional provisions, is our
our opinion that under
opinion that
IV, section
article IV, section 17
17 of
of the
the Iowa
Iowa Constitution,
Constitution, if
if the
the governor
governor resigns
resigns and
and the
The Honorable
The Honorable David
DavidJohnson
Johnson
State Senator
State Senator
Page 16

powers and
powers and duties
duties of
of the
the office
office devolve upon the lieutenant
devolve upon lieutenant governor,
governor, the
lieutenant governor
lieutenant governor becomes governor and and has
has the
thetitle
title of
ofGovernor.5
Governor.^

III. If
III. If the
the Lieutenant
LieutenantGovernor
Governor Becomes
Becomes Governor,
Governor, May She Then
May She
Appoint a New Lieutenant Governor?
New Lieutenant

The framers
The framers of ourour 1857
1857 constitution
constitution knew knew the
the federal
federal precedent
precedent of of not
appointing a a new
new vice
vice president
president when
when the theoffice
office of
of president
president"devolved"
"devolved" to to the
vice president.
elected vice president. See Iowa Ins. Ins. Inst
Inst. v.v. Core
Core Grp. of of Iowa
Iowa Ass'nfor
Ass'n for Justice,
Justice,
867 N.W.2d
N.W.2d 58, 58, 76 (Iowa
(Iowa 2015)
2015) (considering
(consideringthe the "circumstances
"circumstances under which which
the statute
statutewaswasenacted"
enacted"in inorder
ordertotoderive
derive legislative
legislative intent); Rudd, 248 N.W.2d
Rudd, 248 N.W.2d
at 129
at ("When words
129 ("When wordsare are enshrined
enshrined in in aa governmental
governmentalcharter,
charter, so
so as
as to
to speak
across centuries,
centuries, their
their history,
history, purpose,
purpose, and and intended
intended meaning
meaning must
mustbe be closely
closely
examined."). Yet, despite
examined."). despite this
this precedent, our our framers chose not to departdepart from
the federal model and and made no express
express provision
provision forfor the appointment
appointment of a new
lieutenant governor
governor whenwhen the elected
elected lieutenant
lieutenant governor
governor waswas performing
performing the
duties of
of the
the office Governor. On
office of Governor. On the
thecontrary,
contrary,they
theyprovidedin
providedin article
article IV,
IV,
section 19a clear,
clear, tight
tight and complete succession for the powers
complete line of succession the
powers of the
executive even
executive evenin in the
the absence
absence of thethe elected lieutenant governor.
elected lieutenant governor. The
The federal
federal
practice, the
practice, the framers' decision
decision not to provide for a vacancy
provide for a vacancy in the
the office of
office of
lieutenant governor,
lieutenant governor, and and the specific
specific constitutional
constitutional lineline of succession
succession are
strong indications thatthat they
they did
did not
not see
see the
the need
need for
for aa new
new lieutenant
lieutenant governor.
governor.

The governor
The governor has
has always
always had authority to to fill
fill vacancies
vacancies in state
state offices
offices
when
when the constitution
constitution and
and laws
laws did
did not
nototherwise
otherwise provide for doing
provide for doing so.so. Iowa
Iowa
Const. art. IV,
Const, 10. Yet,
IV, Yet, despite
despite this
this provision,
provision, in the four four prior
prior instances
when aa governor has resigned
governor has resigned oror died
died inin office,
office, the new governor
governor hashas not
not relied
upon the
the authority
authorityininsection
section10 10totofill
fillany
any"vacancy"
"vacancy" in in the
the office lieutenant
office of lieutenant
governorsuggestingthat
governorsuggesting that the
the constitutional framework
framework avoided
avoided one.one. See
Annals of
Annals Iowa at 533
of Iowa 533 (noting
(noting Governor
Governor Newbold
Newbold did did not
not appoint
appoint a a new
new
lieutenant governor
lieutenant governor after
after Governor
Governor Kirkwood's resignation "because
Kirkwood's resignation "because the
lieutenant-governorship waswas not
not vacant").
vacant").

Two of
55 Two ofyour
yournine
nineoriginal
originalquestions
questions ask
ask whether the lieutenant
lieutenant governor
governor would
be required to take
take aanew
newoath
oathofofoffice
office and
and who
who would
would be
be empowered
empowered to administer
that oath.
that oath. InInlight
lightofofour
ouropinion
opinion as
asdetailed
detailed above,
above, the answer
answer to those questions is
that no new oath is required. When the lieutenant governoris
that no new oath is required. When the lieutenant governor iselected
elected and
and qualifies
qualifies by
taking an oath
oath before
before the
the general
general assembly
assembly to discharge
discharge the
the duties
duties of
ofthe
theoffice
office of
of
Lieutenant Governor, those duties already include receiving
Governor, those the powers
receiving the powers and
and duties of
of
Governorshould
Governor should aa constitutional contingency arise.
constitutional contingency arise. Nevertheless,
Nevertheless, we we understand
each of
of the four Iowa lieutenant
lieutenant governors
governors who became governor after the
governor after the resignation
or death
death of
of aa sitting
sitting governor
governor chose
chose to
to take
takeaaceremonial
ceremonialoathoathofofoffice
office (in one form or
when they
another) when they assumed
assumed their
their new
new duties.
duties. This
This is
is because
because while
while no new
new oath is
required, the
required, the constitution does not prohibit one.
does not prohibit one.
The Honorable
The Honorable David
DavidJohnson
Johnson
State Senator
State Senator
Page 17

A.
A. Experiences. In answering question one,
States' Experiences.
Other States' one, we
we noted
considerable debate among
considerable among states
states which use constitutional
constitutional language similar to
our own
own ("devolve") asto
("devolve") as to whether
whether the lieutenant
lieutenantgovernor
governor"becomes"
"becomes" governor
governor
or is
is something
something less.
less. Interestingly,
Interestingly,however,
however, wewe found virtually no debate on
found virtually
whether the
the new
new governor can appoint a
governor can a new
new lieutenant
lieutenant governor.
governor. The
The widely-
widely-
accepted answer to to that
that question is no.
no.

Oregon's experience
Oregon's experienceandand constitution
constitution mirrors
mirrors Iowa's
Iowa's in every
every major
major
respect save
save one: upon the the governor's
governor's death
death the
theduties
dutiesofofthe
theoffice
officedevolve
devolve
upon the
the Secretary
Secretary of State,
State, not
not the
the lieutenant
lieutenant governor.
governor. TheThe Oregon
Oregon Supreme
Court closely
closely examined
examinedwhether
whetherthethe governor's
governor'spermanent
permanent departure
departure created
created a
vacancy in
vacancy in the office of the
office of State. State ex
the Secretary of State. ex rel.
ret Roberts
Roberts v. v. Olcott
Olcott
(Olcott II),
(Olcott 187
11), 187 P. 286
286 (Or. 1920). Oregon, like Iowa, had a constitutional
1920). Oregon, like Iowa, had a constitutional
provision generally
provision generally allowing
allowingforforthe
the governor
governor toto fill
fill vacancies
vacancies in in state
state offices.
offices.
The Oregon
Oregon Supreme
Supreme Court
Court determined,
determined, however,
however,thatthat there was no vacancy in
the office
office ofof Secretary
Secretaryof ofState
State when
when the
the governor
governor dieddiedand
and the
the duties (and
office) of
office) of governor
governordevolved
devolvedononthe
the Secretary. Id. at 289. The
The court reasoned
court reasoned
that the
that the constitution
constitution set
set forth
forth an
an unbroken
unbroken and
andautomatic
automatic line
line of
of succession.
succession.
Id.
Id.

The same
The same result
result was
was reached
reached in
ina a1939
1939Michigan
MichiganAttorney
Attorney General
General
opinion. That
opinion. Thatopinion
opinion noted
noted that
thatunder
underthe
the"devolve"
"devolve" framework
framework it is
is well-
well-
settled that
thatwhen
when the
the powers
powers and
and duties
dutiesofofthe
thesuperior
superioroffice
office devolve upon the
devolve upon the
officer,there
inferior officer, thereisis no
no vacancy
vacancy in
in the
the inferior
inferior office.
office. 1939 Mich. Att'yAtt'y Gen.
Gen.
Rep. at 72
72 (noting "plain
"plain rules of common
common sense" make clear "that "that the
the people
people
never intended to intrust the responsibilities of the governorship
never intended to intrust the responsibilities of the governorship to one
one who
who
has not
notbeen
beenelected");
elected"); 22
22R.C.L. Public Officers 97, at 442-43
R.C.L. Public (1918). In
442-43 (1918).
other words,
other words, when
when the powers
powers and
and duties
duties of ofgovernor
governor devolve upon the
devolve upon
lieutenant governor,
lieutenant governor, there
there is
is no
no vacancy
vacancy inin the
theoffice
office of lieutenant governor.6
lieutenant governor.

states have
Other states have agreed. See, e.g.,
agreed. See, Garvey, 195 P.2d at
e.g., Garvey, at 154 (adhering to
154 (adhering
the
the "prevailing view" that
view" that "the inferior officer
inferior officer does not vacate his office"); Budd,
not vacate his office"); Budd,
45 P. at
at 1060
1060 ("It
("It is
is clear
clear that
thatthe
theLieutenant
LieutenantGovernor
Governor does not vacatevacate his
office when he assumes
office when he assumes the powers and duties of the Governorship."); Mitchell,
powers and duties of the Governorship."); Mitchell,
34 P.2d at
at 372
372 (holding
(holding the the assumption
assumptionof ofthe
theduties
dutiesofofthe
theoffice
office of
ofgovernor
governor
does not create a vacancy in the office of lieutenant governor
create a vacancy in the office of lieutenant governor because "he because "he is
discharging the functions of Governor
Governor by bythe
the mandate
mandate of thethe Constitution, and
that by reason
that by reason ofofbeing
being the
the Lieutenant
LieutenantGovernor"); Sadler,
Governor"); Sadler, 47 47 P. at
at 450
450 (holding
when
when the powers
powers and duties
duties devolve, "there is no vacancy
devolve, "there vacancy created
created thereby in
66 That
That legal
legal principle
principle remains
remains true
true in
inMichigan
Michigan even
even though
though the
theMichigan
Michigan
Constitution was thoroughly
thoroughly redrafted
redrafted in
in 1961.
1961. See 1968 Mich. Att'y Gen Rep. 234,
1968 Mich. Att'y Gen Rep. 234,
235 (Mich. Att'y Gen.
(Mich. Att'y Gen. Apr.Apr. 22, 1968) (recounting
1968) (recounting debate from the 1961 Michigan
from the 1961 Michigan
constitutional convention that stated
convention that stated if
ifthe
thelieutenant
lieutenantgovernor
governor became
became governor
governor after
the governor's death oror resignation,
resignation,"there
"there is
is no
no replacement
replacementfor
for him").
him").
The Honorable
The Honorable David
DavidJohnson
Johnson
State Senator
State Senator
Page 18
Page

the office
office of lieutenant
lieutenantgovernor"); Heller, 42 A.
governor"); Heller, A. at
at 156
156(finding
(finding no
no vacancy);
vacancy);
McBride, 70 P.
McBride, P. at
at2626("[T]he officeof
("[T]he office oflieutenant
lieutenant governor
governordiddidnot
not .. .. .. become
become
vacant, but the
vacant, but the officer
officer "remained
"remained lieutenant
lieutenant governor, intrusted with
governor, intrusted with the
the
powers
powers and duties
duties ofofgovernor."); Ekern, 280
governor."); Ekem, 280 N.W.
N.W. at 399399 ("He
("He remains
remains
lieutenant governor, upon whom
lieutenant governor, whom devolved
devolved thethe powers and duties
duties of
of governor.
governor.
In such
such aacontingency
contingency no no vacancy
vacancy occurs
occursin inthe
theoffice
office of
oflieutenant
lieutenantgovernor.");
governor.");
Okla.
Okla. Op.
Op. Att'y
Att'y Gen.
Gen. No.No. 65-235,
65-235, at
at 11 (concluding
(concluding that whenwhen the
the office
office of
of
governor
governor"devolves
"devolvesupon,
upon,descends
descendsto,
to,the
the Lieutenant
Lieutenant Governor,
Governor,.... .. [i]n
[i]n no
no
sense does
sense does the
the Lieutenant
LieutenantGovernor
Governorvacate
vacatehis
hisoffice"); see also
office"); see Idaho Op.
also Idaho Op. Att'y
Att'y
Gen. No. 77-1,
77-1, 1977 WL 25063, at *3 ("[M]ost
WL 25063, ("[M]ostcourts
courtshold
holdthat
that resignation
resignation of
of a
a
governor
governor does
does not
not create a
a 'vacancy'
Vacancy' in
in the
theoffice
office of
of lieutenant
lieutenant governor
governor when
when
that
that person
person assumes
assumesthe devolved duties as governor.").
the devolved duties as governor.").
There are
There are two
two court decisions in other
decisions in other states
states which
which have
have reached the
reached the
opposite
opposite conclusion,
conclusion,but but neither
neither is
is persuasive.
persuasive. By By statute,
statute,Arkansas
Arkansas provides
provides
for
for the special election
election of a new
of a new lieutenant governor.
governor. Ark. Code
Ark. Code 7-7-105;
7-7-105;
Stratton u.
v. Priest, 932 S.W.2d 321 (Ark. 1996)
Priest, 932 (affirming the
1996)(affirming the constitutiona
constitutionality
lity of
of
the statute). Iowa lacks a comparable statute calling for a special
Iowa lacks a comparable statute calling for a special election.election.
Moreover,
Moreover,aa special
special election
election upholds thethe elective
elective principle,
principle, whereas
whereas simply
simply
appointing a new lieutenant
lieutenant governor
governor does not.

very trying circumstances

Under very circumstances aadivided
divided New
New York
York Court
Court of
of Appeals
Appeals
that aa catchall
held that catchallstatute
statuteallowing
allowingthe
thegovernor
governor to
to fill vacancies could
fill vacancies could be
be used
used
to fill
fill a vacancy
vacancy in the
the office
office of
of lieutenant
lieutenant governor. Skelos a
governor. Skelos v. Paterson, 915
Paterson, 915
N.E.2d 1141,
N.E.2d 1142 (N.Y.
1141, 1142 (N.Y.2009).
2009). We do not
We do not find Skelos majority's
find the Skelos reasoning
majority's reasoning
persuasive,
persuasive, because
because it assumes a vacancyvacancy exists
exists and
and decides
decides only
only who is
who is
empowered
empowered toto fill
fillit. In Iowa,
it. In Iowa, given
given our framers'
framers' focus
focus on
on the
the elective
elective principle
principle
and the
the near-unanimous
near-unanimous authority
authority predating Skelos, we
predating Skelos, hesitate to
we hesitate to make a
make a
similar assumption.
assumption. See Okla. Op. Att'y
Att'y Gen. No.
No. 65-235,
65-235, at
at 11 (declining to
(declining to
acquiesce
acquiesce inin the
the "erroneous
"erroneous assumption"
assumption" that "the
"the office
office of
of Lieutenant
Lieutenant
Governor becomes
Governor becomesvacant
vacant when
when the
the Lieutenant
Lieutenant Governor acquires the
Governor acquires the powers
powers
and duties
dutiesofofthe
the Governorship").
Governorship").

Interestingly
Interestingly,, in
in 1943 the
the New York Attorney
New York AttorneyGeneral
Generalhad
had opined
opinedthat
that a
a
statute allowing the governor
statute allowing to make
governor to make appointment
appointmentss could not be applied to aa
could not be applied to
lieutenant governor
governor vacancy
vacancybecause
because it
it "would
"wouldlead
leadto
to the
the anomalous result
anomalous result
that
that aa Governor
Governor by appointing a Lieutenant
Lieutenant Governor and then
Governor and then resigning
resigning could
could
impose upon the
the people
people his
his own
own choice
choice as
as their
theirGovernor."
Governor." 1943
1943N.Y.
N.Y. Op.
Op. Att'y
Att'y
Gen.
Gen. No. 378,
378, 1943
1943WL 54210, at
WL 54210, at*4
*4(N.Y. Att'y Gen.
(N.Y. Att'y Gen. Aug.
Aug. 2,
2, 1943).
1943).
B.
B. Analysis.
Analysis. Having taken
Having taken this
this wealth
wealth of of information
information into
into
consideratio n, we
consideration, we find
find the
the answer to your question inin the intersection between
the intersection between
article IV,
IV,sections
sections 14,
14, 15,
15, 17, 18, and 19
19 of Iowa Constitution
of the Iowa Constitution. . Section
Section 14
14
prohibits an individual
individual from
from holding
holding two
two offices "except as
offices "except as herein
herein expressly
expressly
The Honorable
The Honorable David
DavidJohnson
Johnson
State Senator
State Senator
Page 19

provided." The
provided." The subsequent sections then
subsequent sections then go
go on
on to
to provide for the line
provide for line of
of
succession in
succession in the
the event
event ofofthe
thegovernor's
governor's death,
death,resignation,
resignation, removal,
removal, or or
disability. This
disability. juxtaposition is
This juxtaposition is not
not coincidental.
coincidental. In fact,
fact, the
the entire
entire scheme
scheme
suggests that our
suggests our framers
framers intended
intended for
for situations
situations when
when aasingle
single individual
individual
would
would hold
hold two
two officesincluding
officesincluding the the offices
offices of
of Governor
Governor and Lieutenant
Lieutenant
Governor.? Indeed,
Governor.'^ Indeed, itit means
means that
that when
when the
theexecutive
executive powers and duties
powers and duties
devolvefrom
devolve fromthethe governor
governor to to the
the lieutenant
lieutenant governor,
governor, those
those two
two offices
offices
essentially merge.
essentially merge. As As we
we previously
previously statedthe
statedthe lieutenant
lieutenant governor
governor becomes
becomes
governor because she is is lieutenant
lieutenantgovernor.
governor.

We are persuaded
We are persuaded that that "[i]f the framers
"[i]f the framers of of the
the Constitution
Constitution had had intended
that there
that there should
should be beaavacancy
vacancyin inthe
theoffice
office of
of Lieutenant
Lieutenant Governor
Governor uponupon the
resignation,
resignation, death,death, or permanent removal of the
permanent removal of the Governor, Governor, they could
could have
have
easily said so." Mitchell,
Mitchell, 34 P.2d at at 372; Heller, 42
372; accord Heller, 42 A. at at 156 (concluding
156 (concluding
the framers
if the framers intended
intended aavacancy
vacancyin inthe
thelower
loweroffice,
office, "it is reasonable
reasonable to to believe
believe
would have
they would have said said so
so inin no
no uncertain
uncertain language").
language"). Our framers did not
Our framers not do so.
so.
omission is
This omission is telling, especially
especiallybecause
because our our constitution
constitution was drafted shortly
after two
after two Presidents
Presidents died died inin officeand especially when
officeand especially other states have
when other
amended their
amended their constitutions
constitutions to do so. See, e.g.,
to do Del. Const,
e.g., Del. Const. art.
art. III,
Ill, 20
("Wheneverthe
("Whenever the powers
powers and and duties
duties of of the
the office
office of
of Governor shall
shall devolve upon
devolve upon
the Lieutenant-Governor,
Lieutenant-Governor, .. .. .. his his or
orher
heroffice
office shall
shall become
become vacant
vacant .......");
."); Tex.
Tex.
Const. art.
Const, art.IV,
IV, 16(d) ("On becoming
16(d) ("On becoming Governor,
Governor, the the person vacates
vacates the
the office
office of
of
Lieutenant Governor
Lieutenant Governor.. .. ..."); .");Utah
UtahConst.
Const,art. VII,
art. 10(3)(a)(i)
VII, 10(3)(a)(i)(defining
(defining
vacancies in
vacancies in thethe office of Lieutenant
office of Lieutenant Governor
Governor to to include
include when
when "the
"the Lieutenant
Lieutenant
Governor .. . . .. becomes
becomes Governor").
Governor").

In addition to the
the framers'
framers'distinct
distinctdecision
decision not
notto
to provide
provide for aa vacancy,
vacancy,
other provisions referring to
provisions referring to the lieutenant
lieutenant governor
governor "acting
"acting as"
as" governor
governor or
"exercising the
"exercising the office"
office"of
ofgovernor
governorarearefurther
further compelling
compellingevidence
evidencethat
that there
there is
no vacancy in the office
the office of lieutenant governor. These provisions referring to
lieutenant governor. These provisions referring
the lieutenant
lieutenant governor
governor performing
performing particular functionsas opposed
opposed to saying
merely "the
"the lieutenant
lieutenant governor"would
governor"^would be unnecessaiy and even meaningless
be unnecessary and
if the new
new governor
governor could simply appoint aa "replacement" lieutenant
lieutenant governor.
governor.
See Iowa Const,
Const. art.
art. IV,
15,
15, 18-19
18-19 (1857
(1857 original
original version).

The express language ofof original section 19

19 ("If the
the Lieutenant
Lieutenant Governor,
Governor,
while acting as
while acting as Governor
Governor .. .. .") contemplates a series of eventssomething
.") contemplates
happens to the
the elected
elected Governor
Governor and and then something
something happens to the
the elected
elected

77 For
For example,
example, Article III, section
Article III, section 11 prohibits any person
person from
from exercising
exercising the
two branches
powers of two branches of government "except
"except in
in cases hereinafter expressly directed
or permitted." The
The primary exception to this separationofofpowers
primary exception to this separation powersprovision
provision originally
originally
lay in article IV, sections
sections 15 and 18, which called
18, which called for the Lieutenant Governor
the Lieutenant Governor to serve
as President
as President of the Senate,
Senate, and
and article
article IV,
IV, section 19,
19, which
which named the President
President of
of
the Senate
Senate and
and Speaker
Speakerof ofthe
the House
House of of Representatives to the
the line of succession.
succession.
The Honorable
The Honorable David
David Johnson
Johnson
State Senator
State Senator
20
Page 20

Lieutenant Governor.
Lieutenant Governor.As Asthe
the Oregon
Oregon Supreme
Supreme Court
Court noted,
noted, the
the purpose
purpose of of
creating a line of succession is to
creating to ensure
ensure the
theautomatic
automatictransfer
transferofofpowerto
powerto
ensure that
thatsomeone
someone is
isalways
alwaysendowed
endowed withwith the
thepowers
powersof ofChief
Chief Magistrate.
Magistrate.
See Olcott
See Olcott II, 187 P. at
at 289.
289. WeWebelieve
believe that
thatwas
was also
also the
thepurpose
purposeof ofarticle
article IV,
IV,
section 19to
section extend the
19to extend the line
line ofofgubernatorial
gubernatorial succession
succession beyond
beyond the
lieutenant governor.
lieutenant governor. Inserting
Insertinga anewly-appointed
newly-appointed "replacement"
"replacement" lieutenant
lieutenant
governor in that
governor in that order would interrupt the line the framers deliberately chose
would interrupt the line the framers deliberately
and make
and make it
it impossible
impossible for section 19's
19's provisions
provisions ever to be fully
fully carried
carried out.
out.

Moreover, allowingfor
Moreover, allowing forthe
the appointment
appointment of of a
a new
new lieutenant
lieutenant governor
governor
would
would subvert the elective principle that
elective principle that the
the Iowa
Iowa framers
framers clearly
clearly endorsed.
endorsed.
Like his
Like his or
or her predecessor,
predecessor, under our Constitution
Constitution an appointed
appointed lieutenant
governor would
governor wouldassume
assume the
the powers and duties
duties of
of governor upon the governor's
governor upon governor's
death, resignation, removal,orordisability.
resignation, removal, disability. In
In other
other words,
words, if a a lieutenant
lieutenant
governor who
governor who becomes
becomes governor
governorcan can appoint
appoint aa new
new lieutenant,
lieutenant, Iowa could have
a governor
governor whowho waswas not
not elected
elected byby the
the people.
people. This
This would
would be a a particularly
particularly
unpalatable result
unpalatable result because
because a a primary
primaiy reason
reason for
for creating
creating thethe office
office of
of
lieutenant governor, as
lieutenant as expressed at at the
the 1857
1857 constitutional
constitutional convention,
convention, was to
ensure that
that the
the person
person first
firstininthe
theline
lineof
ofsuccession
succession was
was aastatewide
statewide elected
elected
See Mitchell,
official. See Mitchell, 34 P.2d at at372
372(concluding
(concluding anan unelected
unelected governor
governor "was
never contemplated
never contemplated and and never
never intended
intended by by the
the framers of the Constitution,
Constitution, or
the people
people who
who adopted it");
it"); 1939 Mich.
Mich. Att'y Gen. Rep. at at 69
69("[I]t
("[I]t was never
intended .. .. .
. that
thatany
any person,
person,whowho has
hasnot
notreceived
received the
the sanction
sanction ofof the electors
by direct vote, should be appointed to aa position
vote, should position which
which would
would entitle
entitle him, in
certain eventualities,
certain eventualities,to tothe
thehigh
highoffice
officeof
ofgovernor.").
governor.").

Finally, as
Finally, as we
we have
have noted,
noted,section
section 17's
17'sdevolution
devolution provision
provision applies
applies
equally to
equally to both
both permanent
permanent andand temporary
temporary disabilities.
disabilities. SoSo must the answer to
this question.
question. While
WhileGovernor
Governor Branstad's
Branstad's prospective
prospective resignation
resignation would
would be
permanent, it isis easy
easy to
toimagine
imagine situations
situationswhich
whichwould
would remove
remove aagovernor
governor
from office
from officeonly
onlytemporarily.
temporarily.ForForexample,
example,on onJune
June29, 29, 2002
2002 andand July 21,21,
2007, Vice President Dick
Vice President DickCheney
Cheneyassumed
assumedthe the powers
powersand and duties
duties of the
while President
presidency while President George
GeorgeW. W.Bush
Bushunderwent
underwent medical
medicalprocedures.
procedures. If If
the lieutenant
lieutenant governor assumed the power
governor assumed power and duties
duties ofofthe
thegovernorship
governorship
under similar
under similar (temporary) circumstancesand
(temporary) circumstances and appointed
appointed a a new
new lieutenant
lieutenant
governor, what
governor, what would
would happen
happen to those
those two
two officials
officials upon
upon thethetemporarily-
temporarily-
disabled governor's
disabled governor'sreturn
return toto the office
office of
of Governor?
Governor? Allowing
Allowing for for the
appointment of a new lieutenant
appointment lieutenantgovernor
governor during
during aatemporary
temporaiy disability
disability would
would
be an absurd result. See Mitchell, 34 P.2d at
See Mitchell, at372
372("[I]f the Governor
("[I]f the Governor werewere.. .. .
unable temporarily to perform the duties
duties of
of his
his office, it could
office, it could hardly be argued
that while the Lieutenant Governor
that while the Lieutenant Governor was discharging
discharging the duties
the duties of
ofthe
theoffice
office of
of
Governor, he
Governor, he could
could appoint
appoint aaLieutenant
LieutenantGovernor."); Heller, 42 A.
Governor."); Heller, A. at 158
158
(concludingaa vacancy
(concluding vacancy in in the lower
lower office made little
office made little sense
sense forfor temporary
temporary
The Honorable
The Honorable David
DavidJohnson
Johnson
State Senator
State Senator
21
Page 21

disabilities and "could

disabilities and "could not have
have been
been within
within the
thecontemplation"
contemplation" of
of those
those
drafting the constitutional
constitutionalprovision).
provision).

The subsequent amendments to article

The article IV
IV in 1952
1952 and
and 1988
1988 reinforce
reinforce
our conclusion.
conclusion. In
In1952,
1952,article
articleIV,
IV,section
section 19
19 was
was amended
amended to
to provide,
provide.

If there
If there be
be aavacancy
vacancy inin the
theoffice
office of
of Governor
Governor andand the
Lieutenant Governor
Lieutenant Governorshall
shall by
by reason
reason ofof death,
death,impeachment,
impeachment,
resignation,
resignation, removal
removal from
from office,
office, oror other
other disability
disability become
become
incapable
incapable ofof performing
performingthethe duties
duties pertaining
pertaining to to the
the office
office ofof
Governor,the
Governor, the President
Presidentpro
protempore
temporeof ofthe
the Senate
Senate shall
shall act
act as
Governor until
Governor until the vacancy is filled or the
filled or the disability removed. .. .. ..

Like
Like its
its predecessor, thisthis version of section
section 19 contemplates a series of of events
where
where the governor
governor is is first incapacitated
incapacitated and then the lieutenant governor
then the lieutenant governor
while exercising
while exercising thethe powers
powers andand duties
dutiesofofgovernorbecomes
governorbecomes incapacitated.
incapacitated.
Just like the
Just like the original
original 1857
1857 constitution,
constitution, nothing
nothing in the
the 1952 amendments
1952 amendments
contemplates that that there
there is
is aavacancy
vacancyin inthe
theoffice
office of
of lieutenant
lieutenantgovernor
governor when
the sitting governor
the sitting governor resigns
resigns or or dies.
dies. SeeSee Ekern,
Bkem, 280 280 N.W.
N.W. at 398-99
398-99
(concluding
(concluding under
under language materially identical
identical to
to revised
revised article IV, section 19
that there
that there isis no
nolieutenant
lieutenantgovernor
governor vacancy
vacancy when
when the powers
powers and duties
duties of
of
governor
governor devolve).
devolve). Tellingly,
Tellingly,thethe historical
historical practice
practice ofof not
not appointing
appointing aa new
new
lieutenant governor
governor continued
continued following the death of
following the of Governor
Governor Beardsley
Beardsley in
1954
1954 and the the resignation
resignation of ofGovernor
Governor Hughes
Hughes in in 1969after
1969after thethe 1952
1952
amendments.
amendments.

As noted previously, in 1988 article IV

previously, in IV was amended to provide
provide for the
election
election of
of governor
governorand
andlieutenant
lieutenant governor
governorononthe
thesame
same ticket
ticket and
and to
to alter
alter the
the
lieutenant governor's duties by
governor's duties by removing
removingherher role
role as
as president of the
the senate.
senate.
The 1988 amendments
amendments also
also amended
amended article
articleIV,
IV, section 2
2 to
to provide,
provide, that
that"[t]he
"[t]he
governor
governor and
and the lieutenant
lieutenant governor
governor shall
shall be
be elected
elected by
by the
the qualified
qualified electors."
This latter amendment
This amendment reinforces
reinforces the framers'
framers' commitment
commitment to to the
the elective
elective
principle.
principle.

Nothing in
Nothing in the 1988
1988 amendments
amendments specifically altered the
specifically altered the line
line of
of
succession outlined
succession outlinedinin sections
sections 17
17 and
and 19.
19. Contemporary
Contemporary editorials do not
editorials do not
indicate that the
indicate the voters
voters contemplated
contemplated anything
anything other than
than the
thesingle-ticket
single-ticket
issue and
and the
the lieutenant
lieutenant governor's duties.8 See, e.g., Editorial, Preventive
governor's duties.^ See, e.g., Editorial, Preventive
Maintenance, Des Moines
Maintenance, Des Reg., Oct.
Moines Reg., Oct. 16,
16, 1988, at 2C;
20; Thomas
Thomas A A.Fogarty,
Fogarty,
88 This is in stark
stark contrast
contrastto
to Utah,
Utah,where
where its
its 1980
1980 constitutional
constitutional amendments
amendments
addressing gubernatorial
addressing gubernatorial succession
succession were
werepresented
presentedto
to the
the voters
voters as mirroring the
mirroring the
succession of
succession of the federal
federal governmentwhich by this time had adopted the
government^which by this time had adopted the 25th25th
Amendment. Utah
Amendment. Utah Op.
Op.Att'y
Att'y Gen.
Gen.No.
No. 03-001,
03-001,2003
2003WL
WL 21996258
21996258 (Utah Att'y
Att'y Gen.
Gen.
Aug. 18, 2003).
18, 2003).
The Honorable
The Honorable David
DavidJohnson
Johnson
State Senator
State Senator
22
Page 22

Lawmakers Seek to to Have

Have Governor, Lt. Gov.
Governor, Lt. Run as
Gov. Run as Team,
Team, Des Moines
Moines Reg.
Reg.
(Feb. 3,
(Feb. 3, 1988); Thomas A.
1988); Thomas A. Fogarty,
Fogarty, Voters to Decide if
if Governor, Lt. Gov. Should
Governor, Lt Should
Run as aa Team,
Run Team, Des Moines
Moines Reg. (Apr.
(Apr. 13, 1988);
1988); Linda
Linda Lantor, Lieutenant
Lantor, Lieutenant
GovernorAmendments
Governor Amendments Big Winners,
Winners, Des Moines
Moines Reg. (Nov. 9,
Reg.(Nov. 9, 1988).
1988).

The 1988
The 1988 amendments'
amendments' failure
failure to
to alter
alter the
the line
line of succession or
of succession or address
address
the question
the question of aa vacancy
vacancy in
in the
theoffice
office of
oflieutenant
lieutenant governor
governor is striking
striking
considering the
considering the intervening
interveninghistory
historybetween
between19521952and
and 1988.
1988. Originally
Originally the
U.S. Constitution contained language
language mirroring
mirroring Iowa's
Iowa's devolution
devolution framework.
framework.
The U.S.
The U.S. Constitution,
Constitution, however, was amended
however, was amended in in 1967
1967 following
following thethe
assassination of
assassination of President
President Kennedy.
Kennedy. TheThe 25th
25th Amendment
Amendment to to the
the United
United
States Constitution
States expressly provided
Constitution expressly providedthat
that the vice
vice president
president becomes
becomes
president and
president and granted
granted the
the President the authority
President the authority to appoint
appoint aa new
new vice
vice
president with Congressional approval.
president approval. U.S.
U.S. Const.
Const, amend.
amend. 25,
25, 1, 2.
2.

Iowa's legislators
Iowa's legislators and
and voters in 1988
1988 were
were obviously aware of the
obviously aware the change
the federal system;
in the system; President Ford became the first unelected U.S. President
just the
just the decade
decade before.
before. Yet,
Yet,Iowa
Iowa did
did not
notattempt
attemptto tofollow
follow the
the new
new federal
federal
model. While often dangerous to reach aa conclusion
While it is often conclusion based
based upon
upon legislative
legislative
inaction, by declining
inaction, to adopt the
declining to the federal
federal model,
model, we believe the amendments
believe the
ratified our
ratified our historical precedentnamely,
precedentnamely,that that the
the lieutenant
lieutenant governor
governor assumes
assumes
the title, powers, and
and duties of governor,
governor, but
but does
does not
not appoint
appoint aa new
new lieutenant
lieutenant
governor. See Chiodo v. Section 43.24
governor. 43.24 Panel, 846 N.W.2d
Panel, 846 845, 862
N.W.2d 845, 862 (Iowa 2014)
2014)
(Mansfield, J.,
(Mansfield, J., specially concurring).
concurring).

Because it
Because it is our
our opinion
opinion that
thatupon
upona agovernor's
governor's resignation,
resignation, the
the
lieutenant governor will hold
governor will hold both the
the Office
Office of
of Governor
Governor and the the Office
Office of
of
Lieutenant Governor, as as expressly permitted by Article IV,section
Article IV, section 14,
14, there
there is
no vacancy
vacancy in the
the office lieutenant governor
office of lieutenant governor to
to be
be filled. 4 181 P.
filled. Cf. Olcott I, P. at
at
(relying on
481 (relying on "except
"except as
as permitted" language
language toto conclude an individual could
"hold the
"hold the offices ofgovernor
offices of governorand andsecretary
secretaryofofstate
stateatatthe
the same
same time").
lime"). As
As a
result, under
under these
these facts,
facts,Iowa
Iowa Code
Code section
section 69.8 does
does not
not apply.
apply. See Iowa
Code
Code 69.8(2) (referring to
69.8(2) (referring to the governor
governor filling "a vacancy in the
filling "a the office
office of
of
lieutenant governor" (emphasis added)).
governor" (emphasis added)). Consequently, we we need
need not opine on
statute's constitutionality.9
the statute's constitutionality.^

Answer, It is our opinion that

C. Answer. that if
if the
the governor
governor resigns and the powers
and duties
duties of
of the
the office devolveupon
office devolve uponthe
the lieutenant
lieutenant governor,
governor, that
that person does

9 Because it is not
not the
the factual
factual context
context inin which
which you have asked your questions,
questions,
we do
do not
not address
address whether
whether section
section 69.8
69.8 would
would bebe applicable
applicable if the lieutenant
if the lieutenant governor
governor
resigned or died in office while the governor remained.
office while the governor remained. The Wisconsin
Wisconsin Supreme Court
Supreme
has suggested
has suggested that
thataavacancy
vacancyininthe
theoffice
office of governor exists in that factual
lieutenant governor
of lieutenant
scenario, but
scenario, but not
notwhen
when the
the powers
powers and
and duties
dutiesof ofgovernor
governor devolve upon the
devolve upon the lieutenant
lieutenant
governor.
governor. See
See Ekern,
F/cem, 280
280 N.W. at
at 399.
399.
The Honorable
The Honorable David
DavidJohnson
Johnson
State Senator
State Senator
23
Page 23

not have constitutional authority to appoint a new new lieutenant

lieutenant governor.
governor. Upon Upon
the governor's
governor's resignation, the the powers
powers and
and duties
dutiesofofthe
theoffice
officewill
will devolve
devolve or
fall upon the
fall the lieutenant
lieutenantgovernorwho
governorwho does does not
not ascend or or rise
rise to
to the
theoffice
office of
of
Governor.
Governor. However, under our
However, under our constitutional
constitutional framework,
framework, by possessing
possessing the
powers
powers andand duties of of the
the chief
chief magistrate,
magistrate, thethelieutenant
lieutenantgovernor
governor becomes
becomes
governorfor
governor forall
allintents
intents andand purposes, is entitled
entitled to
to use
use the
thetitle
titleofofGovernor,
Governor,
and isis entitled
entitled to
to the
the compensation
compensation of of governor for the
governor for the remainder of the the term.
term.
The lieutenant
The lieutenant governor
governortakes takes onon this
this authority
authority because
because sheshe is is lieutenant
lieutenant
governor. In
governor. In other
other words,
words,uponupon aagovernor's
governor's resignation,
resignation, thethe lieutenant
lieutenant
governor will
will hold
hold both
both the
the offices
offices of
ofGovernor
GovernorandandLieutenant
Lieutenant Governor.
Governor. There
is no
no vacancy
vacancy to be be filled.
filled. Furthermore,
Furthermore, on on these
these facts,
facts,permitting
permitting the the
appointment
appointment of a new lieutenant governor would disregard Iowa's
a new lieutenant governor would disregard Iowa's historical historical
practice, violate
practice, violatethethe elective
electiveprinciple,
principle,andandinterrupt
interrupt thethe clear,
clear, tight
tight andand
complete line
complete line of
ofsuccession
successionset set out
out in
in our
our constitution.
constitution.

Very truly yours.

Very truly yours,

1..0221
Thomas
ThomaJ^Miller
Miller
Attorney General

S. Thompson
Jeffrey S.
Solicitor General
Solicitor General

Meghan L. Gavin
Assistant
Assistant Attorney
Attorney General

David M.
David M. Ranscht
Ranscht
Assistant
Assistant Attorney
Attorney General
General