February 1, 2017
The Honorable Thomas J. Miller
Attorney General of Iowa
Hoover State Oﬃce Building
1305 E. Walnut St.
Des Moines, Iowa 50319
Re: Request for Oﬃcial Opinion to be issued on an expedited basis
Dear General Miller:
This letter, written in my capacity as a duly elected and serving member of the Iowa General Assembly,
invokes my authority to request an oﬃcial opinion from you as the Iowa Attorney General pursuant in part to
Iowa Code § 13.2.
As you know, that provision states,
It shall be the duty of the attorney general, except as otherwise provided by law to ...
e. Give an opinion in writing, when requested, upon all questions of law submitted by the general
assembly or by either house thereof, or by any state oﬃcer, elective or appointive. Questions submitted by
state oﬃcers must be of a public nature and relate to the duties of such oﬃcer.
As you may further know, I was elected to the Iowa General Assembly by the people of Iowa Senate
District No. 1 and presently am their duly serving member of the Iowa State Senate.
I therefore serve as an elective oﬃcer in the State of Iowa as contemplated by Iowa Code § 13.2.
It further merits noting that in 2016, I declared as an Independent—I do not serve in the present
session of the General Assembly as a Republican or as a Democrat. As of now I believe I am the only
Independent serving in the Iowa General Assembly.
My status as an Independent bestows upon me a special interest in the subject matter of the oﬃcial
opinions I seek below and positions me uniquely to seek legal answers to the specific questions enumerated
below in a non-political, non-partisan manner.

 First, as an Independent, I do not have a conflict in asking the specific questions posed in this letter.
My standing as a State Senator and political position as a Republican or Democrat will remain unaﬀected by
any answers you might provide in an oﬃcial opinion addressing the specific questions I ask below.
Although I am not in a conflict situation, I do have important interests in the expedient resolution of
the questions I am about to ask as a member of the legislative branch and the elected and serving senatorial
representative of the women and men of District 1.
This follows because my inquiries relate to reserved powers of the Legislature and possible votes that
could inure to the State Senate if your oﬃcial opinion, as I believe it must, indicates that the Iowa Constitution
dictates that certain executive vacancy issues must remain a determination of the legislative branch and that
openings in the Oﬃce of the Governor or the Oﬃce of the Lieutenant Governor cannot be filled by unilateral
executive branch action.
Moreover, because I serve the people of District 1 as an Independent, I have a heightened interest in
insuring that the Iowa Constitution is strictly construed without: (a) consideration of partisan interests,
(b) favor or benefit to any majority or minority political party, and (c) aﬀecting the powers of the present
legislative body and its currently serving members.
Further, I have direct and significant interests in insuring that the executive vacancy matters raised in
this letter are addressed in a way that guarantees that the citizens of District 1 do not yield directly or on a
representative basis any powers assigned to the General Assembly and its elected members to another
branch of government and do not forgo the powers reserved unto the People by their state constitution.
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As you will see in more detail below, the subject matter of the oﬃcial opinions sought by me relates to
the duties of a duly elected and serving Lieutenant Governor of the State of Iowa upon the resignation,
removal, or incapacity of the elected and serving Governor of the State of Iowa.
Therefore, I seek your oﬃcial opinion regarding legal questions arising under Iowa Constitution Art. IV
on the nine enumerated questions as asked below.
Before moving to my specific questions, I wish to address other matters that I hope will shape your
willingness to issue a formal opinion and to do so on an expedited basis.
First, the questions I pose relate to matters of the highest importance and urgency.
While the following facts do not inform the legal answers I seek, they do speak to the need for expedited
treatment.
If public statements and reports are correct, our long-serving Governor has been or will be nominated
by the sitting President of the United States to become the Ambassador to China. Reports further state that
nomination and the advice and consent of the United States Senate could move to approval of Governor
Terry Branstad’s appointment in the next several months.

 Governor Branstad has indicated he will resign his position as chief executive of the State of Iowa in
order to begin service as a U.S. Ambassador.
Once he does resign, it would appear that his duties, but not his oﬃce or his title, would be assumed
by Lieutenant Governor Kim Reynolds. Some reports, however, have indicated she would be administered
the oath of oﬃce as Governor of the State of Iowa immediately upon Governor Branstad’s resignation and
succeed to his oﬃce and powers.
Thus, the questions posed below need immediate research and answers so that your oﬃcial opinion is
published before any resignation, vacancy, succession, or administration of oaths of oﬃce to persons claiming
to succeed to powers or position of the Oﬃce of the Governor, or as the case may be, to the Oﬃce of the
Lieutenant Governor, can occur.
You are respectfully asked to issue your oﬃcial opinion on an expedited basis, but in no event, later
than February 15, 2017.
Second, to my knowledge, no litigation or formal proceeding on the questions raised below is
pending, nor imminent. Any such litigation regarding vacancy or succession questions specific to Lieutenant
Governor Reynolds, it would seem to me as a layman, would need to await the resignation of Governor
Branstad.
So, by issuing your oﬃcial opinion on an expedited basis as requested, you likely will provide the
greatest service to the citizens of the State of Iowa and can do so without fear that litigation will intercede or
interfere.
Third, I emphasize that the questions I ask do not seek your interpretation of facts or policy.
References to incumbent oﬃcers or possible and predicted occurrences is by way of illustration only.
Fourth, none of the constitutional questions I ask could be rendered moot by legislation, except for
amendment of the Iowa Constitution, which does not appear probable or possible in the time periods
relevant to current events and any reasonable period in which you might need to issue an oﬃcial opinion.
Lastly, I note that your oﬃce has provided informal guidance on some of the very issues raised. I ask,
instead, that you issue an oﬃcial opinion that would carry the due weight and influence these matters
warrant in all branches of government and the court of public opinion. I further ask that you do not simply
rely on the precedent of a predecessor’s 1923 opinion. The issues raised below appear to some as
unanswered or incorrectly answered by past formal and informal guidance by the Oﬃce of the Attorney
General.
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The formal questions that follow seek oﬃcial legal opinions of the Attorney General on the
assumption of powers to a Lieutenant Governor in the case of a gubernatorial vacancy and succession plan,
duties, and powers that the Iowa Constitution reserves to the General Assembly as an independent,
democratic branch of government.

 Article IV of the Iowa Constitution has these relevant provisions:
Governor. Section 1. The Supreme Executive power of this State shall be vested in a Chief Magistrate, who
shall be styled the Governor of the State of Iowa.
Vacancies. Section 10. When any oﬃce shall, from any cause, become vacant, and no mode is provided by
the Constitution and laws for filling such vacancy, the Governor shall have power to fill such vacancy, by
granting a commission, which shall expire at the end of the next session of the General Assembly, or at the
next election by the people.
Lieutenant governor to act as governor. Section 17. In case of the death, impeachment, resignation,
removal from oﬃce, or other disability of the Governor, the powers and duties of the oﬃce for the residue of
the term, or until he shall be acquitted, or the disability removed, shall devolve upon the Lieutenant Governor.
Duties of lieutenant governor. Section. 18. The lieutenant governor shall have the duties provided by law
and those duties of the governor assigned to the lieutenant governor by the governor.
Succession to oﬃce of governor and lieutenant governor. Section 19. If there be a vacancy in the oﬃce
of the governor and the lieutenant governor shall by reason of death, impeachment, resignation, removal
from oﬃce, or other disability become incapable of performing the duties pertaining to the oﬃce of
governor, the president of the senate shall act as governor until the vacancy is filled or the disability removed;
and if the president of the senate, for any of the above causes, shall be incapable of performing the duties
pertaining to the oﬃce of governor the same shall devolve upon the speaker of the house of representatives;
and if the speaker of the house of representatives, for any of the above causes, shall be incapable of
performing the duties of the oﬃce of governor, the justices of the supreme court shall convene the general
assembly by proclamation and the general assembly shall organize by the election of a president by the
senate and a speaker by the house of representatives. The general assembly shall thereupon immediately
proceed to the election of a governor and lieutenant governor in joint convention.
For the following questions, I ask that you assume the following facts:
The Governor of the State of Iowa resigns eﬀective at 12:01 a.m. on April 1, 2017.
On April 1, 2017 and all relevant times thereafter, an incumbent Lieutenant Governor is duly elected,
qualified, and serving.
On April 1, 2017 and all relevant times thereafter, the lieutenant governor seeks to perform the duties
pertaining to the oﬃce of governor.

Here are my specific legal questions that I ask you answer in an oﬃcial opinion:
1. When the Governor of the State of Iowa’s resignation becomes eﬀective and the powers and duties of the
oﬃce for the residue of the term shall devolve upon the Lieutenant Governor, does the Lieutenant Governor
succeed to the oﬃce, title, position, and powers of the Governor of the State of Iowa, or instead does the

 Lieutenant Governor continue in the oﬃce, title, and position to which elected, but thereupon shall hold the
powers and duties pertaining to the oﬃce of the governor for the remainder of the current term?
2. If the Lieutenant Governor succeeds to the oﬃce of governor, not just the powers of the chief executive,
what was the framers’ intent in selecting the language of Article IV, Section 17 of the Iowa Constitution
regarding the obligation of the Lieutenant Governor “to act as governor” and to declare the “powers and
duties of the oﬃce for the residue of the term” will then “devolve upon the Lieutenant Governor,” and what
does that language mean in light of the upward promotion of the Lieutenant Governor to the oﬃce of
governor rather than the downward devolvement of powers to her as an acting governor?
3. After 12:01 a.m. on April 1, 2017, after the powers and duties pertaining to the oﬃce of the governor
have devolved to the lieutenant governor, has the oﬃce of the governor become filled?
4. After 12:01 a.m. on April 1, 2017, after the powers and duties pertaining to the oﬃce of the governor
have devolved to the lieutenant governor, did the lieutenant governor succeed to the oﬃce as a Chief
Magistrate with the vested Supreme Executive power of the State of Iowa and with the title styled as the
Governor of the State of Iowa?
5. After 12:01 a.m. on April 1, 2017, is the oﬃce of the Governor of the State of Iowa vacant? If so, how and
when is that vacancy filled?
6. After 12:01 a.m. on April 1, 2017, is the oﬃce of the Lieutenant Governor of the State of Iowa vacant? If
so, how and when is that vacancy filled? If your answer refers to Iowa Code § 69.8, is that provision
inapplicable in light of Iowa Constitution Article IV, or otherwise unconstitutional?
7. After 12:01 a.m. on April 1, 2017, after the powers and duties pertaining to the oﬃce of the governor have
devolved to the lieutenant governor, does that person acting in the capacity of governor have the ability to
appoint a successor Lieutenant Governor under Iowa Constitution Article IV, Section 10, or does Iowa
Constitution Article IV, Section 19 constitute a mode provided by the Constitution that supersedes a
governor’s appointment powers under Iowa Constitution Article IV Section 10?
I have two final questions arising under another provision of the Iowa Constitution. They relate to
oaths.
Iowa Constitution Article XI, Section 5 states: “Every person elected or appointed to any oﬃce, shall,
before entering upon the duties thereof, take an oath or aﬃrmation to support the constitution of the United
States, and of this state, and also an oath of oﬃce.”
Under the facts outlined above:
8. Could an oath of oﬃce be administered constitutionally to the Lieutenant Governor after 12:01 a.m. April
1, 2017 to serve as Governor of the State of Iowa when the person to be sworn into oﬃce neither would have
been elected nor appointed to that position?
9.

If so, who would be empowered constitutionally to administer that oath?
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 I appreciate your willingness to provide an oﬃcial opinion on these nine sets of questions. In the
interest of expediency, if you need to assume additional or diﬀerent facts to provide your legal answers,
please do so and simply summarize the new assumptions into your written opinion. Further, while many of
my questions elicit a “yes” or “no” answer, after giving such a response it would be helpful if you would include
an analysis and explanation of your answers so that I and others can understand how you formulated your
responses.
Earlier I mentioned informal statements from your oﬃce on these important issues relating to
assumption of powers or succession of oﬃces. Your spokesman apparently stated, “Our oﬃce has researched
the law and consulted with the Governor’s oﬃce. We concur with the Governor’s conclusion that, upon the
resignation of Governor Branstad, Lt. Governor Reynolds will become Governor and will have the authority to
appoint a new Lieutenant Governor.”
Now that your oﬃcial opinion has been sought, I trust that any prior informal response endorsing the
view of a current, interested governor will neither serve as the judgment of your oﬃce going forward, nor will
it aﬀect the independence you will bring to study and answer the questions I have raised.
As we all recognize, General Miller, the weight and importance of these questions are significant to our
great state. I, as well as my constituents, look forward to your thoughtful, detailed, apolitical, and fresh
analysis.
Furthermore, I have every confidence that your oﬃce has the demonstrated capacity to provide an
oﬃcial opinion that looks only to words of our Iowa Constitution, rather than partisan or political outcomes,
to divine the legal answers I seek as the sole Independent member of the Iowa Senate.
Thank you, and God Bless the Great State of Iowa.
Sincerely,

David Johnson, Iowa State Senator