THOMAS THOMAS J. J. MILLER H lyH "7 O ATTORNEYGENERAL ° tt Wtf H ATTORNEY GENERAL 1305 WALNUTST. 1305 E. WALNUT DESMOINES, MOINES, IA DES 50319 iA 50319 P: 515-281-5164 515-281-5164 www.iowaattomeygeneral.gov www.iowaattorneygeneral.gov IOWA IOWA DEPARTMENT OF DEPARTMENT OFJUSTICE JUSTICE OFFICE OF OF THE THE ATTORNEY ATTORNEY GENERAL GENERAL IOWA IOWA ATTORNEY ATTORNEY GENERAL GENERAL OPINION OPINION #17-04-1 #17-04-1 May 1, 1, 2017 2017 The The Honorable Honorable David DavidJohnson Johnson State Senator State Senator FO PO Box Box 279 279 Ocheyedan, Ocheyedan, Iowa Iowa 51354 51354 Dear Dear Senator Senator Johnson: Johnson: Thank Thank you you for for your your letter letter of of February February 1, 1, 2017. 2017. Your Your letter letter references references Governor GovernorTerry TerryBranstad's Branstad'srecent recent nomination nominationtoto serve serve as as United United States States Ambassador toto China Ambassador China and and poses questions about about the effect his poses nine nine specific specific questions the effect of of his potential potential resignation resignationas as Governor GovernorofofIowa. Iowa. We agree agree that that your letter raises your letter raises important important legal legal questions framework for questions about about Iowa's Iowa's constitutional constitutional framework for the the succession succession of power. This This office officehas has not not previously previously addressed addressed these these of executive executive power. questions questions directly, nor has the Supreme Court. Court. Thus, they are are directly, nor the Iowa Iowa Supreme Thus, we webelieve believe they appropriately appropriately addressed addressed in in an official under official opinion opinion of of the the Attorney Attorney General General under Iowa Iowa Code section section 13.2(e). 13.2(e). We share share your your belief that these these important belief that important issues issues require require aa thoughtful thoughtful and detailed detailed analysis. analysis. Taken Taken as as aawhole, whole, the the nine nine questions questions you you pose pose implicate implicate two central central constitutional constitutional questions. important questions are: two questions. Those Those two two important questions of of law law are: First First question: the governor governor resigns, resigns, does does the the lieutenant lieutenant governor question: If If the governor become governor? governor? Second Second question: question: If the lieutenant lieutenant governor If the governor becomes becomes governor, governor, may may lieutenant governor? she then then appoint appoint aa new new lieutenant governor? The answers answers to of The to these these questions questions must must flow flow from from aa careful careful consideration consideration of the succession frameworkset set forth forth inin the the words and structure the succession framework words and structure of of the the Iowa Iowa constitution. ("The framers framers Ray, 248 N.W.2d constitution. See Rudd v. v. Ray, N.W.2d 125, 125, 129 129 (Iowa (Iowa 1976) 1976) ("The of our our constitution necessarily gave gaveus us their their ideas ideas in in the of constitution necessarily the words words they they agreed agreed upon."). The convention upon."). The debates debates ofof the the 1857 1857constitutional constitutional convention also also shed shed important light light on on the constitutional provisions important the meaning meaning and and intent intent ofof the the constitutional provisions establishing establishing that that framework. framework. See N. N. W. W.Halsey Halsey 86 & Co Co v. v. City City of of Belle Belle Plaine, Plaine, 104 104 N.W.494, 494,496 496(Iowa (Iowa1905) 1905)(noting (notingthat thatreading readingthe the constitutional constitutional debates debates may N.W. may aid in in a fuller understanding of constitutional provisions). Finally, our answers aid fuller understanding of constitutional provisions). Finally, our answers can and of the the same can and should should be be informed informed by by interpretations interpretations of same or or similar similar The Honorable Honorable David DavidJohnson Johnson The State State Senator Senator Page 2 2 provisions constitutions. See Van Van Horn v. v. City City of ofDes Des Moines, Moines, provisions in in other other states' states' constitutions. 191 "similar provisions provisionsin in the 191 N.W. N.W. 144, 144, 148 148 (Iowa (Iowa 1922) 1922) (considering (considering "similar of other other states" states" to decide an issue issue of impression). Constitution[s] of of first first impression). I. Background Background We first provide provide context context for for the the legal legal questions questions by identifying identifying the the relevant We first constitutional provisions, provisions,examining examiningportions portionsof of the the 1857 constitutional 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. IV of of the the Iowa A. Constitutional Provisions. Provisions, Article Article IV Iowa Constitution Constitution A. branch and and sets the succession establishes the executive executive branch sets forth forth aaframework framework for the executive power. power. Some IV have have been of executive Some provisions provisions of article article IV been amended since 1857, 1857, but we we initially initially focus focus on on the theoriginal originalprovisions provisions because because those those established the original framework. In doing established original framework. doing so, so, we we consider consider all the original original executive branch provisions without placing undue significance on one section. executive branch undue significance section. 794 N.W.2d See Rolfe Rolfe State Bank v. v. Gunderson, Gunderson, 794 N.W.2d 561, 561,565 565(Iowa (Iowa2011) 2011)("[W]e ("[W]e avoid placing undue importance on isolated portions of an enactment avoid placing undue importance on isolated portions of an enactment by by construing all parts of of the enactment enactment together."). together."). We We also remain mindful mindful not Iowa Code § 4.4(2) or redundant. to render any any provision provision meaningless meaningless or redundant. See Iowa Code § 4.4(2) Real (2017)(presuming (presuming eveiy every piece of language language is intended (2017) intended to tobe beeffective); effective); Mall Real 818 N.W.2d 190, 198 (Iowa 2012) ("We Estate, L.L.C. Estate, L.L.C. v. City City of ofHamburg, Hamburg, 818 N.W.2d 190, 198 (Iowa 2012) ("We .. .. .. redundant or interpret statutes statutes in in such suchaaway way that thatportions portionsof of it it do do not not become become redundant 448 N.W.2d 480, 483 irrelevant."); see also also Junkins v. v. Branstad, Branstad, N.W.2d 480, 483 (Iowa 1989) 1989) ("Constitutionalprovisions provisions generally subject the same same rules rules of ("Constitutional arearegenerally subject to tothe of construction as statutes."). Considering article article IV IVas as a a whole promotes a a holistic Considering whole promotes holistic understanding of of the constitutional framework, because each provision can inform the others. constitutional framework, because each provision can inform the others. Iowa Code Code§§4.1(38) 4.1(38)("Words ("Wordsand andphrases phrases shall shall be be construed according to See Iowa 18 N.W. 663, 667 see also Allen v. Clayton, the context . . . ."); context . . . ."); also Allen v. Clayton, N.W. 663, 667 (Iowa (Iowa 1884) 1884) (noting that that to (noting to determine determine the the meaning meaning of of aaconstitutional constitutional provision, provision, "the it, which which have have reference referenceto to the the same same subjectsections preceding preceding and following following it, 7 N.W.2d matter, must must be be read read and andconsidered"); considered"); State ex ex rel. ret Martin Martin v. v. Heil, Heil, 7 N.W.2d 375, 381 (Wis. 1942) ("[T]he provision should be examined in its setting 375, 381 (Wis. 1942) ("[T]he provision should be examined in its setting in order to to find find out out .. .. . . the order the real realmeaning meaning and and substantial substantialpurpose purpose of of those those who who adopted it."). The following constitutional provisions are relevant to adopted it."). The following constitutional provisions are relevant to our analysis. Article IV,section section 11 provides provides that that "The "The supreme executive this Article IV, executive power power of this state shall be vested in a chief magistrate, who shall be styled the governor shall be vested in a chief magistrate, who shall be styled the governor of of Iowa." Iowa Iowa Const, Const. art. art. IV, IV,§§1. 1. In other words, the the person who who has has the state state of of Iowa." is governor. governor. This section section has has remained unchanged since 1857. the power is 1857. The The Honorable Honorable David DavidJohnson Johnson State State Senator Senator Page 3 3 Article Article IV, IV,sections sections22 and and 3 3 originally originally established established that that the governor governor and lieutenant governor would people—but not same lieutenant governor wouldbe be elected elected by by the the people—but not on on the same ticket. Article IV, IV, section section 6 required candidates candidates for both both offices offices to have the ticket. Article 6 required to have same qualifications. Article Article IV, IV,section section 10 provided, provided, "When "When any any office officeshall, shall, from from any any cause, cause, become mode is provided provided by Constitution and laws laws for for become vacant, vacant, and and no no mode by the Constitution filling Governor shall power to fill such vacancy, vacancy, by filling such such vacancy, vacancy, the the Governor shall have have power to fill granting a commission, which which shall shall expire expire at at the the end of the next session of the or at at the the next the people." General Assembly, or next election by the people." Article Article IV, IV, section 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 Governor, or hereinafter expressly expressly provided." provided." or Lieutenant Lieutenant Governor, except as hereinafter Article IV,section section 15 15 established established that the Article IV, the lieutenant lieutenantgovernor governor would would serve until until a successor and that acting as serve successor was was elected elected and qualified, qualified, and that "while "while acting Governor," the the lieutenant lieutenant governor would would receive receive the the same same pay as Governor," as provided provided for the governor. the governor. Article IV,section section 17 provides. provides, Article IV, In case In case of ofthe thedeath, death,impeachment, impeachment,resignation, resignation,removal removal from office, office,or or other other disability of the the governor, the powers from disability of governor, the powers and forthe the residue residue of ofthe the term, term, or or until until he shall be duties of the office office for acquitted, or or the upon the acquitted, the disability disability removed, removed, shall shall devolve devolve upon lieutenant governor. lieutenant governor. section has has remained unchanged since 1857. This section 1857. Article IV,section section,18 18 made made the lieutenant Article IV, lieutenant governor governor President President of the Senate with Senate with a a 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 President pro tempore." Article IV,section section 19 19 continued continued the the line Article IV, line of of succession succession beyond beyond the lieutenant lieutenant governor: governor: acting as as Governor, If the Lieutenant Lieutenant Governor, Governor, while while acting Governor, shall be impeached, displaced, resign, or die, or otherwise be impeached, displaced, resign, die, or otherwise become become incapable of performing performingthe the duties duties of the office, the President pro incapable office, the tempore of of the the Senate Senate shall act as tempore as Governor Governor until the vacancy vacancy is filled, or or the the disability disability removed; removed; and and if if the the President of the the Senate, Senate, filled, for any for any of of the the above above causes, causes, shall shall be berendered rendered incapable incapable of of The The Honorable Honorable David DavidJohnson Johnson State State Senator Senator 4 Page 4 performing performing the the duties duties pertaining the same pertaining to to the theoffice office of Governor, the shall devolve upon shall devolve upon the the Speaker Speaker of the House of Representatives. Representatives. Although each Although each provision provisionis is important, important, article article IV, IV, section section 17 17 plays plays the biggest biggest part part in answering art. IV, § § 17 is to answering both questions. "[T]he "[T]he purpose of art. to ensure that performing thatthe thecitizens citizensof ofIowa Iowa are are not not without without aa person person capable capable of 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 25903, at at *3 (Iowa (Iowa Att'y Att'yGen. Gen.Jan. Jan. 2, 2, 1980). 1980 WL WL 25903, 1980). Two Two notable notable aspects aspects of of article article IV, IV,section section17 17inform informour ouranalysis. analysis. First, First, while death and resignation are permanent the phrase "other while death permanentexits exits from from office, office, the disability"includes includes temporaiy temporary conditions conditionssuch such as as physical or mental incapacity incapacity disability" 263, or time spent spent undergoing undergoing aa medical medical procedure. procedure. See 1923 Op. Op. Att'y Att'y Gen. 263, Att'y Gen. Gen. Aug. Aug. 23, 23, 1923) (answering a question posed by 263 (Iowa (Iowa Att'y 1923) (answering a question posed by the the governor governor about about the operation of article IV, section section 17 during aa several-month several-month hiatus recommended section 17 17 must must hiatus recommended by his physician). Therefore, Therefore, article IV, section operate within operate within a framework framework applicable applicable to several several possible possible factual factual scenarios scenarios without creating without "friction in the machinery of government." Fitzpatrick creating "friction in the machineiy of government." Fitzpatrick v. v. McAlister, McAlister, 248 P. 569, 569, 576 (Okla. 1926). Because Because the the provision provision applies applies equally to permanent so too too must the answers to permanent and temporary temporary disabilities, so to the the legal legal questions we address. address. The second second important important aspect aspect of of article article IV, IV, section section 17 17 is is the The the word word "devolve." That word "is defined defined by by lexicographers lexicographersand and in in law law dictionaries dictionaries as as "devolve." word "is Id. at 573 (citing authorities meaning to meaning to roll roll or tumble tumble down down or or descend." descend." Id. 573 (citing authorities see also "Devolve," Black's Black's Law indicating that that meaning meaning as as of of 1926); 1926); see Law Dictionary Dictionary (10th ed. "devolve"totoinclude include transferring transferring rights, rights, duties, duties, or (10th ed. 2014) 2014) (defining (defining "devolve" or New Int'l powers and passing powers passing by bytransmission); transmission);"Devolve," "Devolve," Webster's Webster's Third Third New Int'l (1993) (defining (defining "devolve" "devolve"as as"to "toflow flowor orroll rollfrom from aa situation situation viewed Dictionary (1993) viewed as higher that is fall or or be be passed passed .. . . .. as as higher to one that is lower" lower" and "to fall as an an obligation obligation or or (1954). The overall concept is that responsibility"); 12 12 Words & Phrases 546 (1954). The overall concept is that downward movement. This downward movement means means the the the word connotes downward fall upon the lieutenant governor; the office of Governor powers and duties dutiesof of the office of Governor fall upon the lieutenant governor; See Okla. Okla. Op. the lieutenant lieutenant governor governor does not rise to the the office office of of Governor. Governor. See Op. Att'y 65-235, at 1-2 (Okla. Att'y Gen. May 19, 1965) ("The Att'y Gen. No. No. 65-235, at 1-2 (Okla. Att'y Gen. May 19, 1965) ("The office office of of Governor devolves devolvesupon uponthe the Lieutenant Lieutenant Governor, Governor, he he does does not not ascend Governor ascend to to it."). it."). distinction is is both both important important and purposeful. This distinction purposeful. Viewing article. whole, section section 11 and Viewing article IVIVasasaa whole, and original original section section 18 18 complementeach eachother otherand and dovetail dovetailwith withsections sections17 17and and 19. 19. The words in complement The words in section 18 indicate indicate that that when (as section section when the the powers powers and and duties dutiesdevolved devolved (as section 17 17 would "exercise the office of Governor." instructed), the the lieutenant lieutenantgovernor governor would "exercise the office of Governor." with the foundational principle principle that that the the person That aligns with person who who has has the the power power governor. Iowa Const. art. IV, § 1. The foundational principle is paramount. is governor. Const, art. IV, § 1. The foundational principle is paramount. The Honorable Honorable David DavidJohnson Johnson The State State Senator Senator Page 5 5 Sections 17 17 and and 19 to ensure Sections 19 operate operate to ensure that that there there is is always always aasuccessor successor designated exercise those "powers duties"—even in designated to exercise "powers and and duties"—even in the the absence absence of the lieutenant governor. elected lieutenant governor. Additionally, articleIV, IV,section section14 14 is is instructive instructive because Additionally, article 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 section 14, 14, both both of of which which referred referred specifically specifically to to the the lieutenant lieutenant governor: governor: the lieutenant lieutenant governor governor as senate lieutenant governor governoras as governor governorand and the the lieutenant as senate president. Section president. See Iowa Iowa Const, Const. art. IV, §§ §§ 17-19 (original (original 1857 1857 version). version). Section 19 further holding more more than than one further contemplated contemplated other other officials officials holding one office office by by providingfor forthe thesenate senate president president as as governor governorand and the the speaker speaker of of the the house house as as providing governor. governor. B. B. Constitutional Debates, Constitutional Debates. The The Iowa Iowa Constitution Constitution of of 1846 1846 made made no provision governor. However, However, as the the 1857 1857constitutional constitutional provisionfor for aa lieutenant lieutenant governor. convention a committee committee dedicated dedicated to convention began, began, one one delegate delegate proposed proposed that that a formulating the the executive for the formulating executive branch of of government government consider consider "providing "providing for a Lieutenant Lieutenant Governor who, who, by virtue of his office, shall .. .. .. exercise election of a office, shall in case of the death, all the powers powers and have have the the title title of of Governor Governor in death,removal, removal, or The Debates of the Constitutional 1 other disability other disability of of the theGovernor." Governor." The Debates of the Constitutional Blair Lord Lord rep., rep., 1857) Convention Convention of of the the State State of of Iowa 39 (W. Blair 1857) [hereinafter The Id. Accordingly, the The convention agreed to the resolution. Debates]. resolution. Id. Accordingly, the Debates]. The convention agreed to section 17 envisioned envisioned that that the drafters of of article IV, section the lieutenant lieutenantgovernor governor would would utilized the word id.—and "have the the title "have title of ofGovernor" Governor" if if the the governor governor left left office, office, utilized See Heil, at 381-82 381-82 (recounting "devolve"to toaccomplish accomplishthat that result. result. See "devolve" Heil, 7 N.W.2d N.W.2d at constitutional convention in 1847). similar debate from the Wisconsin constitutional 1847). framers of of our our 1857 1857 constitution constitution also spent spent significant The framers significant time debating line of succession. succession. Several the constitutional constitutional line Several of of the the delegates delegates questioned questioned the because Iowa Iowa had had no no lieutenant lieutenant need for a lieutenant lieutenant governor governor at at all—possibly all—possibly because governor before before 1857—and 1857—andoffered offeredamendments amendmentsto toarticle articleIV, IV,section section17. 17. For governor Warren proposed proposed an an amendment substituting the words instance, delegate delegate Warren amendment substituting words at 587. "Lieutenant Governor." "Secretary of State" for "Lieutenant Governor." 1 The Debates at 587. Delegate Delegate Clarke of of Johnson Johnson County^ County' proposed "that the Clarke proposed instead "that the duties duties of ofthe theoffice office of of in case case of aa vacancy, vacancy, shall shall devolve devolveupon upon the the president president of the the Senate." Governor, in The convention actually passed Id. The Id. convention actually passed Clarke's Clarke's amendment, amendment, eliminating eliminating the position of of lieutenant lieutenant governor governorfrom fromthe the 1857 1857 constitution constitution and and altering position altering the constitutional constitutional line of succession. succession. were two two men men named named Mr. Clarke Clarke and and one named Mr. Clark at the the Iowa 1 "There were 1 at 6. 6. see 1 The Senn, 882 882 N.W.2d 2016); see convention." State v. Senn, N.W.2d 1, 1, 13 13 n.7 n.7 (Iowa 2016); The Debates, Debates, at The The Honorable Honorable David David Johnson Johnson State Senator State Senator Page 6 6 The next morning, The next Gray asked asked his morning, however, however, delegate delegate Gray his colleagues colleagues "to "to consider consider well well the the importance importance of the matter matter before before striking" striking" the the provisions provisions regarding regarding the lieutenant lieutenant governor. Id. at at 591. governor. Id. 591. An Anadvantage advantage of of retaining retaining the office officewas 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 that important because the Legislature." Id. Gray found that "We "We all all seem seem to to agree agree in in placing elections, as as far far as possible, in the placing elections, possible, directly directly in power of the the 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 from the people taking people the the power power of of selecting selecting their their own own chief chief magistrate. When When aaman manisisaacandidate candidatefor forthe theoffice office of of Lieutenant Governor, Governor, the the people people always always vote votefor for him him with with the the understanding that circumstances that circumstancesmay mayarise arisewhich whichwill will make make him him their theirGovernor. Governor. to the Senate the of selecting the man who But if you give give to the power power of selecting who may be the Governor the people, you you take from from the people Governor of the people this power and and put put it it into into the the hands hands of Senate. power of the Senate. Id. at at 591-92. Id. 591-92. DelegateGray's Gray'sremarks remarkssparked sparked renewed reneweddebate debateon on the the subjeet, subject, and and Delegate changed their minds. that some delegates changed minds. For Forexample, example,delegate delegateWilson Wilson offered offered that although he he had originally voted to eliminate the position of lieutenant although had originally voted eliminate the position of lieutenant governor,"upon "upon reflection reflection.... .. the advantages in [having aa lieutenant governor, in favor favor of [having Id. at 593. governor]are arefar far superior superior to to the disadvantages." governor] disadvantages." Id. at 593. Most Mostsignificant, significant, however, were were Mr. Mr. Clark's Clark's remarks: remarks: to strike I voted voted yesterday yesterday to strike out out the theoffice office of ofLieutenantLieutenantGovernor. I had Governor. had not notreflected reflected upon upon it it well, well, and I am inclined to the opinion that that 1I did did not not vote voteright. right. Upon hearing the the argument argument thus thus opinion Upon hearing far upon the the question, question, and and upon uponreflection, reflection, II am am disposed disposed to to favor favor of Lieut[enant] Lieut[enant] Governor, Governor,for forone onereason, reason, if if there there were no no the office office of that an whoeverhe he may may be be that that other: I believe believe that an executive executive officer, officer, whoever shall perform the duties that office, whether Governor shall perform the duties of of that office, whether Governor or or Lieutenant-Gover Lieutenant-Governor, ought to to be elected directly by the people, in nor, ought at least for it. it. We all cases, at least so so far far as asititisispossible possible to to provide provide for We elect elect by the direct the Governor Governor by direct votes votes of of the thepeople—by people—by the popular popular —by the case of of his his removal removal or or disability, disability, I will—by thepopular popularvoice. voice. In In case his place should not see no reason why the person person filling his not be be elected elected the whole whole people people as as much as as the Governor himself. directly by the the Governor himself. Id. at at 594. Id. 594. After some further further debate, debate, the convention voted 19-14 19-14 against After some convention voted against the the Id. at that would struck the office of lieutenant governor. amendment that would have have struck the office of lieutenant governor. Id. at The The Honorable Honorable David DavidJohnson Johnson State Senator Senator State Page 7 7 595. Accordingly, the convention convention also 595. Accordingly, also restored other provisions relating to to the office of oflieutenant lieutenant governor. at 596. office governor. See id. at 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 people," Iowa 2, that thatthis this"elective "elective power is is inherent inherent in in the people," Iowa Const, Const. art. art. I, I, § 2, principle" core of of our our constitutional constitutional framework. framework. The The framers framers principle"lies liesat at the core intended that that those elected. Section intended those in in the the gubernatorial gubernatorial line line of 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 requiring that that the the lieutenant lieutenantgovernor governor "be elected." C. Iowa Iowa Historical Historical Practice. Practice. Four Iowa governors governors have have either either resigned C. in office. office. In 1877, or died while in 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 assumedthe the powers powers and and duties of upon the resignation. Newbold of Governor Governor upon resignation. Governor Albert AlbertCummins Cumminsresigned resignedinin 1908 1908 after after his his election to the United Governor election to United assumed the powers States Senate. Lieutenant LieutenantGovernor Governor Warren Warren Garst assumed powers and duties of the upon the Governor duties the Governor Governor upon the resignation. resignation. InIn1954, 1954, GovernorWilliam William Beardsley was killed in an automobile accident. Upon his death, Lieutenant Beardsley was killed in an automobile accident. Upon death. Lieutenant Governor Leo LeoElthon Elthonassumed assumedthe the powers powers and and duties of Governor. Governor Governor. Finally, Finally, in 1969 Governor Harold Hughes resigned to take his seat in the United Governor Harold Hughes resigned to take his seat in United States Senate. Lieutenant Fulton assumed the powers Senate. LieutenantGovernor Governor Robert Fulton powers and duties duties of of upon the the resignation. resignation. the Governor Governor upon instances, the In each of these four instances, the lieutenant lieutenantgovernor governor (upon whom whom the powers and and duties was treated treated as powers duties of of the theoffice office devolved) devolved) was as Governor Governor in every every respect, but did not not appoint a a new new lieutenant governor. governor. In In 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 revealsseveral severalsignificant significanttrends. trends. First, First, upon the This historical practice a sitting has always death or or resignation resignation of a sitting governor, governor, the lieutenant lieutenant governor governor has appointed or governor. Second, been considered considered governor. Second, the new new governor governor has never appointed lieutenant governor. named a a new new lieutenant governor. In 1857, Federal Language Language and History. D. D. Federal History. In 1857, when when the the Iowa Iowa Constitution was was ratified, ratified, article articleII, II,section section 1, 1, clause clause 6 6 of the United Constitution United States Constitution read: read: "In Case Case of of the the Removal Removal of of the the President Presidentfrom from Office, Office, or of of Inability to to discharge discharge the Powers and Duties of the his Death, Death, Resignation, Resignation, or Inability Powers and said Office, the Same shall devolve on the Vice President . . Thus, article Office, the Same shall devolve on the Vice President . . ..."." Thus, article IV, section section 17 of the the Iowa Iowa Constitution closely closely tracked tracked language language in in the United IV, United States Constitution at at the time. States time. that federal Under that federal language, language, multiple multiple presidents presidentsdied died in inoffice. office. Following Following each death, the Vice President was considered President in full. Two death, the Vice considered in full. Two of these The Honorable Honorable David DavidJohnson Johnson The State State Senator Senator Page 8 8 John Tyler instances occurred occurred before before 1857: John 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 likelyunderstood understoodthe the word word"devolve" "devolve" meanthat that upon upon the convention totomean the lieutenant lieutenant governor governor's exit from office, office, the governor would would be begovernor governorfollowing following 785, 810 a downward a downward movement movement of of powers. powers. See State v. v. Baldon, Baldon, 829 N.W.2d N.W.2d 785, (Iowa 2013) 2013)(Appcl, (Appel,J., J., specially specially concurring) concurring)(noting (noting"the "the drafters drafters of the Iowa (Iowa Iowa Constitution were aware" of of existing existing federal federal law law when when writing Constitution were well well aware" writing in 1857); 1857); 243 N.W. 719, 723 723 (Iowa 1932) ("[HJistorical ("[H]istorical. ..... matters matters may Gallamo v. Long, 243 N.W. 719, a Long, taken into consideration when interpreting be taken interpreting the the Constitution."). Constitution."). A federalcourt court decision decisionfrom from 1867 1867confirms confirmsthis this understanding: understanding: A federal Three times, times, since since the adoption Three adoption of the the constitution, constitution, the president has died, and, under [article II, section 1, died, and, under [article 1, clause 6], the upon the the powers and duties duties of of the the office office of president have devolved devolved upon vice president. president. All under such vice All branches of of the government government have, under circumstances, recognized circumstances, recognized the vice vice president as as holding holding the theoffice office president,as as authorized authorizedtotoassume assumeits itstitle title. .. ..... It of president, It has has never never been supposed supposed that, that, under been under the the provision provision of the constitution, constitution, the vice president president.. .. .. acted as the servant, vice servant, or or agent, agent, or or locum tenens the deceased deceased president, president, or or in in any other capacity than than as of the as holding holding of president president fully, for for the the time being, by virtue of express the office office of emanating from the the United States. authority emanating United States. 1867). The The three three instances instances Merriam v. Clinch, Merriam Clinch, 17 F. Cas. Gas. 68, 68, 70 70 (C.C.S.D.N.Y. (C.C.S.D.N.Y. 1867). to which to which the the court courtreferred referred were were President PresidentTyler, Tyler, President President Fillmore, Fillmorc, and President Andrew Johnson in 1865. Andrew Johnson in 1865. Likewise,the the Oklahoma Oklahoma Supreme Supreme Court Court relied relied upon federal Likewise, federal history history several decades decades later laterin inanalyzing analyzingthe theword word"devolve:" "devolve:" [U]ponthe the death of [U]pon of President President Wm. Wm. H. H. Harrison, Harrison, Vice Vice President President Tyler became becamePresident Presidentof ofthe theUnited UnitedStates. States. For almost a a century lyier this construction construction of the federal federal Constitution Constitution has stood stood without without question. ItIthas hasbeen beenrecognized recognized as as correct, correct, and acquiesced in, not only by by the the departments departments of of state state and all the states only states of of the the Union, Union, but officially recognized by every civilized government in the world. but officially recognized every civilized government in the world. Defendant suggests suggests that that no court has that Defendant has ever ever pronounced pronounced that to be the law. law. To our mind, it is so clearly correct that no one To mind, it clearly correct that one has ever presumed presumed to to test test its its correctness correctness in in the the courts. Therefore ever Therefore it should have greater weight than an ordinary departmental should have greater weight than an ordinary departmental The Honorable Honorable David DavidJohnson Johnson The State State Senator Senator 9 Page 9 construction, not not only only because because it it has has stood stood for almost a a century, century, but because it but because the correct conception it has hasbeen beenrecognized recognized as as the correct conception of our system system of government, and because, years under government, and because, for for eighty-five eighty-five years this construction, there has has been been no no friction friction in in the the machinery machinery of of government by by reason reason of ofsuch such construction. construction. Fitzpatrick, Fitzpatrick, 248 P. at 576; see also 466, 467 (Or. 576; see alsoOlcott Olcottv.v.Hoff Hoff(Olcott (Olcott I), I), 181 P. 466, 467 (Or. 1919) ("[U]pon ("[U]ponthe thedeath deathof ofthe thepresident president no no one one has has ever claimed claimed that that the the 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 would would contend contend that upon upon death death or orresignation resignation of of the thePresident, President, the theVice Vice President President does does not thereby President of of the United thereby become become President ") Between United States . . . ."). Between Merriam in 1867 and Fitzpatrick in 1926, died in 1926, three three more more presidents presidents died inoffice— office— and once once again, President.2 again, after each death, death,the thevice vice President President was was considered considered President.^ The consistent The consistent federal federal understanding understanding of of the theword word"devolve" "devolve" over over several several decades further informs means in in article informs our our determination determination of of what what"devolve" "devolve" means article section 17 of the the Iowa Iowa Constitution. Constitution. IV, section Moreover,President Presidentlyier Tylerdid didnot notappoint appoint aa new new vice vice president president in in 1841. Moreover, 1841. A new vice election A new vice president did not not take take office office until until 1845, 1845,following following the the election of of George GeorgeDallas Dallasto to the the office officealmost almostfour fouryears yearslater. later. In In 1850, 1850,when when Millard Millard Fillmore Fillmoreassumed assumedthe the powers powers and and duties of of the the presidency presidency upon upon Zachary Zachary Taylor's death, death, he he too too did did not not appoint appoint a a new new vice vice president. president. Once the Taylor's Once again, again, the for a a new new vice vice president president for for almost almost three three years years until the the election country waited for election King. of William King. practice continued continued upon the death every President. President. The This historical practice death of of every The most recent instance occurred upon the death of President John F. Kennedy. the death of President John F. Kennedy. LyndonJohnson Johnson did did not not appoint appoint aa new new vice vicepresident presidentin in1963. 1963. Our President Lyndon Our nation's next president, Hubert was elected in 1964. nation's next vice vice president, Hubert Humphrey, Humphrey, was 1964. Having established established this this historical to analyze analyze Having historical perspective, perspective,we we now proceed proceed to questions. the legal questions. II. If the Governor Resigns, Does II, Governor Resigns, Does the the Lieutenant LieutenantGovernor Governor Become Governor? Governor? Beyond dictionary dictionary definitions, definitions, another another important Beyond important guidepost guidepost in in "devolve"isiswhat whatititwas wasunderstood understood to to mean mean at at the the determining the meaning of "devolve" enacted: time it was enacted: 22 The The three three were were President President Chester Chester Arthur Arthur in in1881, 1881,President PresidentTheodore Theodore in 1901, 1901, and President in 1923. 1923. Roosevelt in PresidentCalvin Calvin Coolidge Coolidge in The The Honorable Honorable David DavidJohnson Johnson State Senator State Senator Page 10 the Constitution Constitution ... . . . we are to to ascertain ascertain the In the interpretation of the we are meaning by the intention intention of of those those making making the the meaning by getting getting at at the instrument. What What thought thought was was in in the the mind mind of of those those making making the Constitution—what was was their their intention, intention, is is the great Constitution—what great leading rule of of construction. construction. parte Pritz, 9 Iowa 30, 30, 32 32 (1858); (1858); accord Griffin v. Pate, Pate, 884 884 N.W.2d 182, 186 Ex parts Pritz, 9 N.W.2d 182, (Iowa 2016) 2016)(beginning (beginninganalysis analysis of of aa constitutional constitutional provision (Iowa provision "by looking looking back the history" history" of ofitit"to "to gain gain aa better better understanding of the concept" as as to review review the applied current case); case); Redmond v. Ray, N.W.2d 849, 853 (Iowa 1978) 1978) applied in in a current Ray, 268 268 N.W.2d 849, 853 ("In ("In construing 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 were were undoubtedly undoubtedly aware aware of of precedent under framework. This federal federal practice, practice, and and the federal precedent under the the"devolve" "devolve" framework. "have the title the framers' framers' resolution resolution that the the lieutenant lieutenant governor governor could could "have title of of Governor" if 39, are strong strong indications if the the governor left office, 1 The Debates at at 39, that the was thought thought to Governor upon upon that theverb verb "devolve" "devolve" was to convey convey the the entire entireoffice office of Governor the lieutenant governor. lieutenant governor. Iowais is not not the the first state to A. Other States' States' Experiences. A. Other Experiences. Iowa to face face significant legal legal questions questions regarding regarding aa governor's significant governor's permanent departure from from office. While do not office. While other other states' states' constitutions constitutions and and experiences experiences do not alone alone Brown, 216 determine Iowa Constitution Constitution means, means, see Handeland Handeland V. v. Brown, determine what the Iowa N.W.2d574, 574, 577 577 (Iowa (Iowa 1974), 1974),we wefind findvaluable valuableto to our our analysis analysis the language N.W.2d language used in those states' constitutions and court decisions or attorney used those states' constitutions and court decisions or attorney general general involvingthat that language. language. opinions involving of available available authority authority reveals reveals a a relatively even divide. divide. When Our review review of relatively even When the relevant the relevant constitutional constitutional provision provision utilized utilized the the word word"devolve," "devolve," some some authorities in in other authorities other states states have have concluded concluded that that the thelieutenant lieutenantgovernor governor governor. In view of the the question question as as we have have phrased it, becomes governor. view of it, we we call these the "yes" decisions. decisions. See, e.g., Bryant Bryant v. v. English, English, 843 S.W.2d S.W.2d 308, 308, 311 311 (Ark. (Ark. 1992) ("[W]e ("[W]ehold holdthat that...... the the Lieutenant Lieutenant Governor serves as as Governor for the the Governor serves Governor for residue residue of the term term ......."); ."); State ex ex rel. rel Lamey Lamey v.v.Mitchell, Mitchell, 34 P.2d P.2d 369, 370 (Mont. 1934) ("[W]hen ("[W]henthe theGovernor Governorresigns resigns or or is is permanently (Mont. permanently removed removed from office,there there is is no no vacancy vacancy in in the the office officeof ofGovernor Governorininthe thesense sensethat that there there is is no office, one left with one with power power to discharge discharge the the duties dutiesimposed imposed upon uponthe theGovernor."); Governor."); Trapp is is just just as Fitzpatrick, 248 P. at Fitzpatrick, at 577 577 ("Mr. ("Mr. Trapp as much much aaGovernor, Governor, in in every every literal and and practical sense and and effect, as though though he had been to the literal practical sense effect, as been elected elected to is not shown office."); Chadwick v. v. Earhart, Earhart, 4 P. P. 1180, 1180,1181 1181 (Or. (Or.1884) 1884)("[I]t ("[I]t is shown . . . . aa person how .... personcan canfill fillthe theoffice office of ofgovernor governor without withoutbeing being governor."); governor."); State 70 P. 25, 26 (Wash. 1902) ("The constitution ex rel. rel Murphy v. v. McBride, McBride, P. 25, 26 (Wash. 1902)("The constitution having provided that that in case of provided of the death death of of the the governor governor the the duties duties of ofthe the office office shall devolveupon upon the the lieutenant lieutenant governor, governor,there there is is no vacancy devolve vacancy in the the office office of of governor."); 1939 1939 Mich. Mich.Atfy Att'yGen. Gen. Rep. Rep. at at 73 (concluding (concluding when the governor."); the governor governor The The Honorable Honorable David DavidJohnson Johnson State Senator State Senator Page 11 dies, the lieutenant lieutenant governor governor is is "governor "governorof ofthe the state state [for] [for] all all intents intents and purposes"). purposes"). concluded that that the Others have have concluded the lieutenant lieutenant governor governor or next next person person "in line" is is not truly governor. We We call these these the the "no" "no" decisions. decisions. See, e.g., State ex rel. De 153,154 154(Ariz. (Ariz. 1948)(concluding De Concini v. Garvey, Garvey, 195 P.2d 153, (concluding the the person upon whom whom the powers powers and and duties dutiesof ofgovernor governor devolve devolve after after the the governor's governor's death or or resignation resignation "is "is not notgovernor governor de de jure jureor orde defacto factobut butmerely merelyex exofficio"); officio"); Oldham, 155 S.W. 502, 502, 504 504 (Ark. 1913)(concluding (concluding under under a a previous Futrell VV. Oldham, version of of the the Arkansas Arkansas Constitution Constitution that that the person version person upon upon whom whom the the powers powers and duties duties of of governor governor devolve devolve"acts "acts as as Governor Governor.. .. .. merely merely by virtue virtue of his office senate,and anddoes doesnot notactually actuallybecome becomeGovernor"); Governor"); office as as president of the senate, People P. 1060, 1060,1060 1060(Cal. (Gal.1896) 1896)("[I]t ("[I]t would People ex ex rel. rel. Lynch Lynch v. v. Budd, Budd, 45 45 P. would hardly hardly be contended when the the powers powers and and duties dutiesof ofthe thegovernor governor devolve devolve upon contended that when upon the lieutenant governor governor the thereby becomes becomes governor governor .. .. .. ."); ."); State ex ex rel. rel the latter thereby 47 P. a vacancy occurs in the Hardin v. Sadler, Sadler, 47 P. 450, 450,450 450(Nev. (Nev. 1897) 1897) ("If ("If a the office office governor, the the powers powers and and duties of upon the the lieutenant of governor, of the the office office devolve devolve upon governor.. .. .. .. The governor Theofficer officer remains remains lieutenant lieutenant governor, governor, but but invested with with the powers powers and duties dutiesof ofgovernor."); governor."); State v. v. Heller, Heller, 42 A. A. 155, 155, 157 157 (N.J. (N.J. 1899) 1899) ("Thelanguage languageused usedisisnot notambiguous. ambiguous. It It declares declares that that the powers, duties, duties, and ("The emoluments office shall emoluments of of the the office shall devolve devolveon onthe the president president of of the the senate; senate; it does v. Ekem, Ekem, 280 not confer upon him him the thetide titleof ofthe theoffice."); office."); State ex ex rel. rel Martin Martin v. N.W. 393, 393, 399 (Wis. lieutenant governor does not N.W. (Wis. 1938) 1938) ("[T]he ("[Tjhe lieutenant governor does not 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."). The substantial substantial number B. numberof of"no" "no" decisions decisions is is significant. significant. B. Analysis, Analysis. The "no" decisions decisions are are based on aa careful and the the The "no" careful parsing parsingof ofthe theword word "devolve" "devolve" and other relevant constitutional language. When resolving legal questions, other relevant constitutional language. When resolving legal questions, 865 N.W.2d precision and and nuance matter. precision matter. See Rivera v. Woodward Woodward Res. Res. Ctr., Ctr., 865 N.W.2d 887, 897 2015). Thus, 887, 897 (Iowa (Iowa 2015). Thus,placing placing Iowa Iowa among among the the "no" "no" decisions decisions would be legally defensible. defensible. Indeed, legally Indeed, in in 1977, 1977,the theIdaho IdahoAttorney AttorneyGeneral Generalacknowledged acknowledged that, although he believed them to be somewhat counterintuitive, that, although he believed them to be somewhat counterintuitive, the the "no" "no" suggested "the "the lieutenant lieutenant governor decisions suggested governor never truly succeeds succeeds to to the the office office of governor" governor"under underthe the Idaho Idaho Constitution Constitution(which (whichat at the the time time used the word word "devolve"). Idaho Idaho Op. Atty Att'y Gen. No. 77-1, 77-1, 1977 25063, at "devolve"). 1977 WL WL 25063, at*1 *1 (Idaho Att'y Att'y Gen. Jan. Jan. 4, 1977). The Idaho Attorney General went on to recommend that 4, 1977). The Idaho Attorney General recommend that only the Idaho Supreme as a only Supreme Court Court could could answer answer the the question question definitively definitively as See id. matter matter of of Idaho law. law. See Nonetheless, we find find the the "yes" "yes" decisions decisions more more persuasive persuasive than than the "no" Nonetheless, we decisions for for several several reasons. reasons. First, we believe the "no" decisions First, we believe the "no" decisions elevate elevate form over substance, substance, which over which the Iowa Iowa Supreme Supreme Court Court has hasrepeatedly repeatedly cautioned cautioned 818 N.W.2d 165, 179 (Iowa 2012); against. See, e.g., Lewis v. v. Jaeger, Jaeger, 818 N.W.2d 165, 179 2012); State ex The Honorable Honorable David DavidJohnson Johnson State Senator Senator State Page 12 12 Miller v. v. Smokers Smokers Warehouse 737 N.W.2d rel. Miller Warehouse Corp., Corp., 737 N.W.2d 107, 107, 110 110 (Iowa 2007); 2007); Van Baale Baale v. City City of ofDes DesMoines, Moines, 550 N.W.2d N.W.2d 153, The "no" "no" 153, 156 156 (Iowa (Iowa 1996). 1996). The decisions decisions are somewhat technical, drawing drawing a linguistic distinction distinction that, that, while while noteworthy, substantive difference difference under the circumstances circumstances noteworthy, makes makes no no substantive under the presented here. See Harriman Harriman V. v. State, Greene 270, 270, 285 285(Iowa (Iowa 1849) 1849) presented here. State, 2 Greene (considering unmeaning (consideringitit the the court's court's "imperative "imperativeduty" duty"to to"disregard "disregard. ... .. unmeaning more to to the the substance substance and technicalities, and to look more and merits meritsof ofeach each case"); case"); see 7 N.W.2d at 381 ("It ("It is is extremely important in in the interpretation of also Heil, Heil, 7 N.W.2d at extremely important of constitutional constitutional provisions provisionsthat that we we avoid avoid determinations determinations based based purely purely on on technical technical .. .. .. argument and that that we we seek to discover discover the the true true spirit and and intent of the provisions provisions examined."). Under Iowa's framework, little examined."). Under framework, there there could could be little dispute that if if the thegovernor governor resigns, resigns, the the lieutenant lieutenantgovernor governor would would possess possess dispute that 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 score, score, article article IV, IV, section section 1 1 of of the theIowa Iowa Constitution Constitution carries carries On that significant weight. That Thatsection section provides, provides,"The supreme executive power of this supreme executive this state shall shall be be vested vested in in aachief chiefmagistrate, magistrate,who who shall shall be be styled styled the the governor governor of of Iowa." Iowa Iowa Const, Const. art. art. IV, IV,§§1. 1. In In other words, the the person who who has has the state state of of Iowa." is governor. under a the power power is governor. As As the the Arkansas Arkansas Supreme Supreme Court concluded concluded under similar provision in the the Arkansas Arkansas Constitution, Constitution, this this means when similar provision in when the the powers powers and duties duties of of governor governor devolve devolveupon upon the the lieutenant lieutenant governor, governor,that that person person is thereafter styled the the governor. governor. See Bryant, Bryant, 843 S.W.2d at 313; accord thereafter styled 843 S.W.2d at 313; Fitzpatrick, at 572 572 ("The ("The person person who who .. .. ..fills fillsthe theoffice office of of chief chief Fitzpatrick, 248 248 P. at magistrate 'the Governor of Oklahoma.' Oklahoma.' He magistrate is styled styled 'the Governor of He is is the the 'Governor' 'Governor' for the simple reason reason that that he simple he governs."). governs."). Thus, Thus,there there isisno nosubstantive substantivedifference difference and acting 73 between governor governor and acting governor. governor. See State State ex ex rel. rel. Chatterton Chatterton v. Grant, 73 P. 470, 470, 474 474 (Wyo. (Wyo. 1903) 1903)(concluding (concludingthat, that, after after the the governor governor died, died, the the question whether in fact the whether a person person "[wa]s "[wa]s in the governor governor of of the the state" state" was was immaterial immaterial because, governor or because, whether governor or acting acting governor, governor,the the person person had had the powers and duties of the office). duties office). A A person person acting acting as asgovernor governor after after the the powers powers have have because of section 1.3 devolved is governor, because of article IV, section 1.^ Second, the the "yes" with the Second, "yes" decisions decisions comport comport with the Iowa Iowa framers' framers' role and and with understanding of the lieutenant lieutenant governor's governor's role 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 left office. office. 1 The that person to to "have "have the the title title of ofGovernor" Governor" if the governor governor left at 39. Furthermore, each time the governor of Iowa has Debates at 39. Furthermore, each time the governor of Iowa has resigned resigned or 1923 opinion opinion acknowledges, acknowledges,asasititmust, must,that that in in some instances 33 This office's office's 1923 devolveonly onlyon onaatemporary temporarybasis. basis. To To the the extent extent the the 1923 the powers and duties duties will will devolve governor, to be substantively substantively different opinion describes acting as governor to different from being governor, we now now clarify clarifythat that issue. issue. The The Honorable Honorable David DavidJohnson Johnson State Senator State Senator Page 13 died in office, office, the governor was thereafter treated as as governor. governor. See the lieutenant lieutenant governor William William H. Fleming, Fleming, The Second Officer Officer in Government, reprinted in the Government, reprinted in in Annals of Historical Quarterly, Quarterly, Vol. Vol. XIII, (1921) [hereinafter of Iowa: Iowa: A Historical XIII,No. No.1, 1, at at 533-34 533-34 (1921) Annals Annals of ofIowa] Iowa] (recalling (recalling Governor GovernorKirkwood's Kirkwood'sresignation resignationinin 1877 1877 and Governor Governor Cummins's Cummins's resignation resignation in 1908); 1908); Legis. Legis. Servs. Servs.Agency, Agency, Pieces of Pieces of Iowa's Past: Lieutenant Lieutenant Governors Governors Who Who Have Have Become Become Governor Governor 2-3 (Mar. 8, Iowa's Past: 8, 2017), available at https://www.Iegis.iowa.gov/docs/publications/TB/ 2017), https: / / www. legis. iowa. goy/ does / publications / TB / 855445.pdf Governor Hughes's 855445.pdf (noting (noting Governor Governor Beardsley's Beardsley's death death in in 1954 and Governor resignation 1969). Indeed, Indeed,one onehistory historyofofIowa Iowareferred referredtotoKirkwood's Kirkwood's resignation in in 1969). successor as Kirkwood'sresignation. resignation. 4 successor asthe the"ninth "ninthgovernor governorof ofIowa" Iowa" following following Kirkwood's Benjamin Benjamin F. Gue, Gue, History of History of of Iowa: Iowa: From From the the Earliest Earliest Times to the Beginning of the Twentieth Twentieth Century Century 199-200 (1903). Although historical historical practice practice standing (1903). Although alone mandate a similar similar result result now, now, the the historical historical practice practice is alone does does not not mandate consistent with the framework of executive power we have described. consistent with the framework of executive described. Gallamo, Gallarno, 243 N.W.2d N.W.2d at interpreting constitutional constitutional at 723 723 (noting (noting history history is is important in interpreting provisions); see Bryant, Bryant, 843 S.W.2d S.W.2d at 312 (finding (finding it it "of "of some some persuasion" persuasion" at 312 that, when the the governor governor of Arkansas died in office office or that, when or resigned, resigned, the the lieutenant lieutenant treated as governor was historically treated as governor). governor). Finally, driven by legal legal problems problems that Finally, many many of of the the "no" "no" decisions decisions are are driven Iowa's Arizona, the court concluded concluded one Iowa's framework frameworkavoids. avoids. For example, in Arizona, the court reason the secretary was the the absence reason secretary of state did did not not become become governor governor was absence of a bestowing upon upon that that person provision bestowing person"the "theemoluments emolumentsof ofthe theoffice office of of governor governor . ..when Garvey, 195 P.2d at at 157-58. .. . whenacting acting[as] [as]governor." governor." Garvey, 195 P.2d 157-58. By By contrast, contrast, article article IV, section section 15 of of the the Iowa Iowa Constitution Constitution expressly expressly provides provides that that "while "while acting as governor," the lieutenant lieutenant governor governorisis"paid "paidthe the compensation compensation.... .. acting governor," the prescribed for the governor." Iowa Iowa Const. Const, art. art.IV, IV, § 15. 15. Likewise,the the Arkansas Arkansas Supreme Supreme Court Court expressed concerns in Futrell Likewise, expressed concerns about the senate—a legislative about thepresident presidentofofthe the senate—a legislativeofficer—performing officer—performing executive executive branch duties. See See Futrell, 155 S.W. at 504; see also Bryant, 843 S.W.2d Futrell, S.W. at also Bryant, S.W.2d at 312 the position position of of lieutenant lieutenantgovernor governor alleviated alleviated any 312 (explaining (explaining that that creating the separation-of-powersconcerns). concerns). Iowa's Iowa's framework framework has has always that separation-of-powers always avoided avoided that section 11 permitted the lieutenant problem. Article Article III, section lieutenantgovernor governor to to preside preside over the senate by allowing one person to perform both legislative and senate by allowing one person to perform both legislative and executive executive expressly provided. provided. Further, under the duties where where expressly the 1857 1857 constitution, constitution, when when the lieutenant governor was also president of the senate, article IV, section lieutenant governor president senate, article IV, section 18 directed the the senate senate to elect directed elect aa president president pro pro tempore tempore when when the the lieutenant lieutenant governor was was exercising exercisingthe the office officeof ofgovernor. governor. And And today, today, the lieutenant governor lieutenant governor no no longer longer has has any legislative duties, so so there is governor legislative duties, is no noseparation-ofseparation-ofpowers problem. problem. Without powers Without potential potential issues like like those those faced faced in in Arizona Arizona and Arkansas, we find the "yes" decisions to be a better analytical guide. Arkansas, we decisions to be a analytical guide. The Honorable Honorable David David Johnson Johnson The State State Senator Senator Page 14 Iowa's amendments amendments to to article article IV IV do do not not change change or or alter our analysis Iowa's analysis of of article IV, IV,section section 17. 17. A the effect of article A 1952 amendment amendment to to article article IV, IV, section 19 removed a a reference to to the lieutenant lieutenant governor removed 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. today. There to the remains There is is aanatural naturaltendency tendencyto toascribe ascribesignificance significance to change, but but that really say say much much about about the title of the change, that amendment amendment doesn't doesn't really person upon upon whom whom the the powers powers and andduties dutiesdevolve—because devolve—because article article IV, IV, section 1 controls that that question. And And in inany anyevent, event,as aswe wehave haveexplained, explained, "acting as" governor is is simply simply what what the the lieutenant governor does when when the powers governor governor does powers and duties devolve, not aa substantive substantive limit on his duties devolve, not his or or her her power power or title. The more more significant significant piece pieceof ofthe the 1952 1952 amendments, amendments, in in our view, was a The view, was that if section providing providing that if the the governor-elect governor-e/ect died, resigned, or failed failed to qualify, qualify, the lieutenant would"assume "assumethe the powers powers and and duties the lieutenant governor-elect governor-elect would duties of of governor"upon uponinauguration. inauguration. As governor" As we we have have noted, noted, article article IV, IV, section section 11 would would therefore make make the the person person with with the the powers powers the the governor. governor. In other words, the therefore 1952 altered—the existing existing framework frameworkfor for the 1952 amendment amendment solidified—not solidified—not altered—the 4 transfer of executive power in the event of a constitutional contingency. transfer of power in the a constitutional contingency.^ In 1972, article IV IV were werechanged, changed,but but they they did did not 1972, several several provisions provisions of artiele affect sections sections 11 or or 17. Originally, sections 2 2 and 3 affect Originally, article article IV, sections 3 provided provided the The 1972 governor and and lieutenant governor lieutenant governor governor served served two-year two-year terms. terms. The 1972 amendment merely merelyincreased increasedboth bothterms termstotofour fouryears. years. Thus, it it does amendment does not indicate any significant change change in in the constitutional transferring constitutional framework for transferring executive power. power. Indeed, Indeed, the the 1972 amendments amendments retained retained the the requirement that that executive and lieutenant lieutenant governor governor be be elected, elected,and and that that they serve the governor governor and serve until successors were and qualified. successors were elected and Iowa enacted enacted more more signifieant significantamendments amendments 1988. The Iowa in in1988. The 1988 1988 amendments provided for the first time that the governor and lieutenant amendments provided for the first time the governor and lieutenant governor are are elected elected together, together, on one ticket, governor 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 and lieutenant lieutenant governor to represent represent different different political politicalparties. parties. The governor governor to The amendment brought to fruition a constitutional delegate's statement at amendment brought to fruition constitutional delegate's statement at the 1857 "The governor will always, 1857 convention: convention: "The governor and lieutenant-governor lieutenant-governor will always, I presume, be the same in politics, and why not have the successor presume, be the same politics, why have the successor of the governor of of the the same same politics, instead of bringing in one of the governor politics, instead bringing in the antagonistic antagonistic at 593. 593. Debates at party?" party?" 1 The Debates GovernorBeardsley's Beardsley'sdeath deathoccurred occurredinin 1954, 1954, after after the the 1952 44 Additionally, Additionally, Governor 1952 our state's state's practice amendments—but our practice of of treating treating the the lieutenant lieutenantgovernor governor as asgovernor governor remained remained the the same. same. The Honorable Honorable David DavidJohnson Johnson The State Senator State Senator Page 15 The 1988 amendments amendments also also recast recast the the lieutenant lieutenantgovernor's governor's duties. duties. The 1988 Under original governor was president president of of original article article IV, IV, section section 18, 18, the the lieutenant lieutenant governor the senate and and possessed possessed aa tiebreaking tiebreaking vote. IfIfthe thelieutenant lieutenantgovernor governor was was or exercising the office of Governor, the Senate absent, impeached, impeached, or exercising the office of Governor, the Senate was was instructed choose a president pro pro tempore tempore to preside and and break break ties. ties. instructed to to choose a president to preside However, However,the the 1988 1988 amendments amendments revised revised article article IV, IV, section section 18 18 to to provide provide that that the lieutenant governor "shall provided by lieutenant governor "shall have the the duties duties provided by law law and and those those duties of the governor assigned governor by the governor assigned to to the the lieutenant lieutenant governor by the the governor." governor." In In other words, the 1988 the lieutenant lieutenant governor's status as words, the 1988 amendments amendments removed removed the governor's status president of the the Senate. Senate. president The only only remaining duty "provided "provided by by law" law" is is 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 put it: already lieutenant As the Montana Supreme Court put When the framers of of the the Constitution Constitution provided provided for When the framers for the election Governor and Lieutenant Governor Governor as members of of election of of aa Governor and a a Lieutenant as members the executive department but conferred conferred upon the executive departmentof ofthe the state, state, but upon the latter no poweror or authority authorityother otherthan than in in the latter no executive executive power the contingenciesmentioned mentioned. ..... ,, they manifested the intention intention that that contingencies manifested the the people people elect two two qualified qualified heads heads of that that department—the department—the one active, lieutenant, ready ready at aa moment's moment's notice notice to active, the the other other his lieutenant, assume the duties dutiesof ofthe theoffice, office, should should his his superior superiorofficer, officer, for any assume the reason, either unable to reason, either temporarily temporarily or permanently, permanently, become become unable perform them. them. perform 258 N.W. Mitchell, Mitchell, 34 P.2d P.2d at at 371-72; 371-72; see also also State State ex exrel. ret Sathre Sathre v.v.Moodie, Moodie, 258 N.W. 558, 567 ("The Lieutenant Lieutenant Governor, Governor,elected electedat at the the same election, 558, 567 (N.D. 1935) ("The election, . . . . has .... has been been chosen chosen by by the the people people to to act act as asGovernor Governor in in [the] [the] event event the I, 181 fails to to qualify, qualify, or or is is unable unable to act Governor fails act because becauseof ofdisability."); disability."); Olcott 7, at 483 the people peopleelected electedMr. Mr.Olcott Olcott. .....,, by by the the very terms of the P. at 483 ("[W]hen ("[Wjhen the veiy terms constitution they elected him to to become become governor governor upon the the death death of ofGovernor Governor Withycombe."); Heil, N.W.2d at 383 383 (noting (noting the the lieutenant lieutenantgovernor governor "was "was Withycombe."); Heil, 7 N.W.2d deliberatelychosen chosenby bythe the people peoplefor for no no other other important important purpose purpose than than to deliberately substitute for the 1988 amendments amendments do not alter our substitute for the the governor"). governor"). Therefore, the analysis on this question. question. considering the the Iowa Iowa Constitution's language and C. Answer. Answer. After After considering Constitution's language structure, placing it in historical perspective, and comparing placing in historical perspective, and comparing other other legal legal analyses on on similar provisions,ititis is our our opinion that under analyses similar constitutional constitutional provisions, opinion that IV, section section 17 17 of of the the Iowa Iowa Constitution, Constitution, if if the the governor governor resigns resigns and and the article IV, The Honorable Honorable David DavidJohnson Johnson The State State Senator Senator Page 16 powers and and duties upon the lieutenant powers duties of of the the office office devolve devolve upon lieutenant governor, governor, the lieutenant governor and has lieutenant governor becomes governor and has the thetitle title of ofGovernor.5 Governor.^ III. If She Then III. If the the Lieutenant LieutenantGovernor Governor Becomes Becomes Governor, Governor, May May She New Lieutenant Appoint a New Lieutenant Governor? The framers framers of our our 1857 The 1857 constitution constitution knew knew the the federal federal precedent precedent of of not a new to the appointing a new vice vice president president when when the theoffice office of of president president"devolved" "devolved" to Ins. Inst Inst. v. of Iowa Iowa Ass'nfor Ass'n for Justice, Justice, vice president. president. See Iowa Ins. elected vice v. Core Core Grp. of 58, 76 (Iowa (Iowa 2015) 2015) (considering (consideringthe the "circumstances "circumstances under which 867 N.W.2d N.W.2d 58, which 248 N.W.2d Rudd, 248 the statute statutewas wasenacted" enacted"in inorder orderto toderive derive legislative legislative intent); Rudd, N.W.2d at 129 ("When words wordsare are enshrined enshrined in in a a governmental governmentalcharter, charter, so so as as to to speak at 129 ("When across centuries, centuries, their their history, history, purpose, purpose, and and intended intended meaning meaning must mustbe be closely closely examined."). Yet, despite despite this this precedent, our our framers chose not to depart examined."). depart from and made no express for the appointment the federal model and express provision provision for appointment of a new when the elected lieutenant governor governor when elected lieutenant lieutenant governor governor was was performing performing the Governor. On duties of of the the office office of Governor. On the thecontrary, contrary,they theyprovided—in provided—in article article IV, IV, clear, tight tight and complete succession for the powers the section 19—a clear, complete line of succession powers of the executive even evenin in the the absence absence of the the elected lieutenant governor. executive elected lieutenant governor. The The federal federal practice, the framers' decision not to provide for a vacancy in the office practice, the decision provide for a vacancy the office of of lieutenant governor, and the specific line of succession lieutenant governor, and specific constitutional constitutional line succession are strong indications that that they they did did not not see see the the need need for for aa new new lieutenant lieutenant governor. governor. The governor governor has has always always had authority to The to fill fill vacancies vacancies in state state offices offices when for doing doing so. so. Iowa when the constitution constitution and and laws laws did did not nototherwise otherwise provide provide for Iowa Const. art. IV, § 10. Yet, Const, IV, § Yet, despite despite this this provision, provision, in the four four prior prior instances when a has resigned has not a governor governor has resigned or or died died in in office, office, the new governor governor has not relied lieutenant upon the the authority authorityin insection section10 10totofill fillany any"vacancy" "vacancy" in in the the office office of lieutenant governor—suggestingthat that the the constitutional framework governor—suggesting framework avoided avoided one. one. See did not not appoint appoint a a new Annals of Annals of Iowa Iowa at 533 533 (noting (noting Governor Governor Newbold Newbold did new lieutenant governor resignation "because "because the lieutenant governor after after Governor Governor Kirkwood's Kirkwood's resignation lieutenant-governorship was was not not vacant"). vacant"). Two of ofyour yournine nineoriginal originalquestions questions ask ask whether the lieutenant lieutenant governor 55 Two 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 governor that no new oath is required. When the lieutenant governoris 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 those duties already include receiving the powers powers and and duties of Lieutenant Governor, Governor, those receiving the of Governorshould should aa constitutional contingency arise. arise. Nevertheless, Governor constitutional contingency Nevertheless, we we understand lieutenant governors after the the resignation each of of the four Iowa lieutenant governors who became governor governor after or death death of of aa sitting sitting governor governor chose chose to to take takeaaceremonial ceremonialoath oathofofoffice office (in one form or when they they assumed assumed their their new new duties. duties. This another) when This is is because because while while no new new oath is the constitution does not prohibit one. required, does not prohibit one. required, the The Honorable Honorable David DavidJohnson Johnson The State Senator State Senator Page 17 States' Experiences. A. Other States' Experiences. In answering question one, one, we we noted A. considerable debate among among states states which use constitutional considerable constitutional language similar to asto to whether whether the lieutenant our own own ("devolve") ("devolve") as lieutenantgovernor governor"becomes" "becomes" governor governor or is is something something less. less. Interestingly, Interestingly,however, however, we we found found virtually virtually no debate on whether the can appoint a the new new governor governor can a new new lieutenant lieutenant governor. governor. The The widelywidelyaccepted answer to to that that question is no. no. Oregon's experience experienceand and constitution constitution mirrors mirrors Iowa's Iowa's in every Oregon's every major major respect save save one: upon the the governor's governor's death death the theduties dutiesofofthe theoffice officedevolve devolve State, not upon the the Secretary Secretary of State, not the the lieutenant lieutenant governor. governor. The The Oregon Oregon Supreme Court closely closely examined examinedwhether whetherthe the governor's governor'spermanent permanent departure departure created created a vacancy in in the office of the the Secretary of State. vacancy office of State. State ex ex rel. ret Roberts Roberts v. v. Olcott Olcott 187 P. 286 (Or. 1920). Oregon, like Iowa, had a constitutional (Olcott (Olcott II), 11), 187 286 1920). Oregon, like Iowa, had a constitutional provision generally generally allowing allowingfor forthe the governor governor to to fill fill vacancies vacancies in in state provision state offices. offices. The Oregon Oregon Supreme Supreme Court Court determined, determined, however, however,that that there was no vacancy in of Secretary Secretaryof ofState State when when the the governor governor died diedand and the the duties (and the office office of at 289. The court office) of of governor governordevolved devolvedon onthe the Secretary. Id. office) The court reasoned 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 wellwellupon the the settled that thatwhen when the the powers powers and and duties dutiesof ofthe thesuperior superioroffice office devolve devolve upon officer,there thereis is no no vacancy vacancy in in the the inferior inferior office. office. 1939 Mich. Att'y inferior officer, Att'y Gen. Gen. "plain rules of common common sense" make clear "that "that the Rep. at 72 72 (noting "plain the people people never intended to intrust the responsibilities of the governorship to one never intended to intrust the responsibilities of the governorship one who who (1918). In Public Officers § 97, at 442-43 has not notbeen beenelected"); elected"); 22 22R.C.L. R.C.L. Public 442-43 (1918). other words, upon the other words, when when the powers powers and and duties duties of ofgovernor governor devolve devolve upon lieutenant governor, lieutenant governor. lieutenant governor, there there is is no no vacancy vacancy in in the theoffice office of lieutenant governor.®6 at 154 (adhering to See, e.g., states have Other states have agreed. agreed. See, e.g., Garvey, Garvey, 195 P.2d at 154 (adhering Budd, the "prevailing view" that "the inferior officer does not vacate his office"); the view" that inferior officer not vacate his office"); Budd, 45 P. at at 1060 1060 ("It ("It is is clear clear that thatthe theLieutenant LieutenantGovernor Governor does not vacate vacate his Mitchell, office when he assumes the powers and duties of the Governorship."); office when he assumes 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 because "he is create a vacancy in the office of lieutenant governor because "he Governor by bythe the mandate mandate of the the Constitution, and discharging the functions of Governor 47 P. P. at at 450 (holding Sadler, that by that by reason reason of ofbeing being the the Lieutenant LieutenantGovernor"); Governor"); Sadler, 47 450 (holding when "there is no vacancy when the powers powers and duties duties devolve, 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 1968 Mich. Att'y Gen Rep. 234, See Constitution was thoroughly thoroughly redrafted redrafted in in 1961. 1961. Mich. Att'y Gen 234, 235 (Mich. Att'y Gen. Apr. 22, 1968) (recounting debate from the 1961 Michigan (Mich. Att'y Gen. Apr. 1968) (recounting from the 1961 Michigan that stated constitutional convention convention that stated if ifthe thelieutenant lieutenantgovernor governor became became governor governor after the governor's death or or resignation, resignation,"there "there is is no no replacement replacementfor for him"). him"). The Honorable Honorable David DavidJohnson Johnson The State Senator State Senator Page 18 Page the office Heller, 42 A. office of lieutenant lieutenantgovernor"); governor"); Heller, A. at at 156 156(finding (finding no no vacancy); vacancy); McBride, 70 P. McBride, officeof oflieutenant lieutenant governor governordid didnot not .. .. .. become P. at at26 26("[T]he ("[T]he office become vacant, vacant, but intrusted with but the the officer officer "remained "remained lieutenant lieutenant governor, governor, intrusted with the the powers and duties Ekern, 280 powers 280 N.W. at 399 duties ofofgovernor."); governor."); Ekem, N.W. at 399 ("He ("He remains remains lieutenant governor, upon whom lieutenant governor, the powers and duties whom devolved devolved the duties of of governor. governor. In such such aacontingency contingency no no vacancy vacancy occurs occursin inthe theoffice office of oflieutenant lieutenantgovernor."); governor."); Okla. Op. Op. Att'y Att'y Gen. Gen. No. No. 65-235, 65-235, at at 11 (concluding that when Okla. (concluding that when 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 Idaho Op. does the the Lieutenant LieutenantGovernor Governorvacate vacatehis hisoffice"); office"); see also also Idaho Op. Att'y Att'y 77-1, 1977 WL 25063, at *3 ("[M]ost ("[M]ostcourts courtshold holdthat that resignation resignation of of a a Gen. No. 77-1, WL 25063, 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 person devolved duties as governor."). that person assumes assumesthe the devolved duties as governor."). There are are two two court decisions in other other states which the There decisions in which have have reached reached the opposite conclusion, conclusion,but but neither neither is is persuasive. persuasive. By opposite By statute, statute,Arkansas Arkansas provides provides for the special election of a new lieutenant governor. Ark. for election of a new governor. Ark. Code Code § § 7-7-105; 7-7-105; 932 S.W.2d 321 (Ark. 1996) (affirming the the constitutiona constitutionality Stratton u. v. Priest, Priest, 932 1996)(affirming lity of of lacks a comparable statute calling for a special election. the statute). Iowa Iowa lacks a comparable statute calling for a special election. Moreover,aa special special election election upholds the Moreover, the elective elective principle, principle, whereas whereas simply simply appointing a new lieutenant lieutenant governor does not. governor Under very very trying circumstances circumstances aadivided divided New New York York Court Court of of Appeals Appeals that aa catchall vacancies could could be be used used held that catchallstatute statuteallowing allowingthe thegovernor governor to to fill fill vacancies Skelos a 915 to fill fill a vacancy vacancy in the the office office of of lieutenant lieutenant governor. governor. Skelos v. Paterson, Paterson, 915 reasoning Skelos majority's N.E.2d 1141, 1142 (N.Y.2009). 2009). We do not not find find the the Skelos N.E.2d 1141, 1142 (N.Y. We do majority's reasoning is a vacancy persuasive, persuasive, because because it assumes a vacancy exists exists and and decides decides only only who who is empowered to to fill fillit. it. In our framers' framers' focus empowered In Iowa, Iowa, given given our focus on on the the elective elective principle principle hesitate to to make a Skelos, we and the the near-unanimous near-unanimous authority authority predating predating Skelos, we hesitate make a Okla. Op. Op. Att'y Att'y Gen. Gen. No. No. 65-235, 65-235, at at 11 (declining to similar assumption. assumption. See Okla. (declining to acquiesce in in the acquiesce the "erroneous "erroneous assumption" assumption" that that "the "the office office of of Lieutenant Lieutenant Governor becomes becomesvacant vacant when when the the Lieutenant Governor acquires the the powers Governor Governor acquires powers and duties dutiesof ofthe the Governorship"). Governorship"). Interestingly, in 1943 the York Attorney AttorneyGeneral Generalhad had opined opinedthat that a a Interestingly , in the New New York statute allowing to make make appointment appointments could not be applied to statute allowing the governor governor to s could not be applied to aa vacancybecause because it it "would "wouldlead leadto to the the anomalous result lieutenant governor governor vacancy anomalous result that aa Governor appointing a a Lieutenant and then then resigning that Governor by appointing Lieutenant Governor Governor and 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. No. 378, 378, 1943 54210, at Att'y Gen. Gen. Aug. Aug. 2, 2, 1943). Gen. 1943WL WL 54210, at*4 *4(N.Y. (N.Y. Att'y 1943). Having taken taken this Analysis. B. B. Analysis. Having this wealth wealth of of information information into into consideration, we find find the the answer to to your your question question in in the intersection between consideratio n, we the intersection between IV,sections sections 14, 14, 15, 15, 17, 18, 18, and and 19 the Iowa Iowa Constitution Constitution. article IV, 19 of of the . Section Section 14 14 an individual "except as as herein prohibits an individual from from holding holding two two offices offices "except herein expressly expressly The Honorable Honorable David DavidJohnson Johnson The State Senator Senator State Page 19 provided." The sections then then go go on on to for the line provided." The subsequent subsequent sections to provide provide for line of of succession the event event of ofthe thegovernor's governor's death, death,resignation, resignation, removal, removal, or or succession in in the disability. This juxtaposition is is not not coincidental. coincidental. In fact, disability. This juxtaposition 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 the offices offices of of Governor would hold hold two two offices—including offices—including the Governor and Lieutenant Lieutenant Governor.? Indeed, Indeed, it it means and duties Governor.'^ means that that when when the theexecutive executive powers powers and duties devolve devolvefrom fromthe the governor governor to to the the lieutenant lieutenant governor, governor, those those two two offices offices essentially merge. merge. As essentially As we we previously previously stated—the stated—the lieutenant lieutenant governor governor becomes becomes governor because she is is lieutenant lieutenantgovernor. governor. We are persuaded persuaded that that "[i]f the framers framers of of the the Constitution Constitution had had intended We are "[i]f the that there upon the that there should should be beaavacancy vacancyin inthe theoffice office of of Lieutenant Lieutenant Governor Governor upon resignation, death, or permanent removal of the Governor, they could resignation, death, permanent removal of the Governor, could have have Heller, 42 42 A. at at 156 (concluding Mitchell, 34 P.2d at at 372; 372; accord Heller, easily said so." Mitchell, 156 (concluding the framers framers intended if the intended aavacancy vacancyin inthe thelower loweroffice, office, "it is reasonable reasonable to to believe believe would have have said said so so in in no no uncertain uncertain language"). language"). Our framers did not so. they would Our framers not do so. omission is is telling, especially especiallybecause because our our constitution constitution was drafted shortly This omission after two especially when when other other states have after two Presidents Presidents died died in in office—and office—and especially Del. Const, Const. art. art. III, § 20 amended their their constitutions constitutions to to do amended do so. See, e.g., e.g., Del. Ill, § ("Wheneverthe the powers powers and and duties duties of shall devolve upon ("Whenever of the the office office of of Governor shall devolve upon the Lieutenant-Governor, Lieutenant-Governor, .. .. .. his his or orher heroffice office shall shall become become vacant vacant ......."); ."); Tex. Tex. Const. art. § 16(d) ("On becoming becoming Governor, Governor, the the person vacates Const, art.IV, IV, § 16(d) ("On vacates the the office office of of Lieutenant Governor Governor.. .. ..."); VII, § 10(3)(a)(i) Lieutenant .");Utah UtahConst. Const,art. art. VII, § 10(3)(a)(i)(defining (defining Lieutenant Governor to include include when when "the "the Lieutenant Lieutenant vacancies in the the office office of Lieutenant Governor to Governor .. . . .. becomes becomes Governor"). Governor"). In addition to the the framers' framers'distinct distinctdecision decision not notto to provide provide for aa vacancy, vacancy, referring to to the lieutenant other provisions provisions referring lieutenant governor governor "acting "acting as" as" governor governor or "exercising the the office" office"of ofgovernor governorare arefurther further compelling compellingevidence evidencethat that there there is "exercising no vacancy in the office of lieutenant governor. These provisions referring the office lieutenant governor. These provisions referring to the lieutenant lieutenant governor governor performing performing particular functions—as opposed opposed to saying merely "the "the lieutenant lieutenant governor"—would be unnecessary and governor"—^would be unnecessaiy and even meaningless if the new new governor governor could simply appoint aa "replacement" lieutenant lieutenant governor. governor. Const. art. art. IV, §§ §§ 15, 15, 18-19 18-19 (1857 (1857 original See Iowa Const, original version). The express language of the Lieutenant of original section 19 19 ("If the Lieutenant Governor, Governor, while acting as as Governor while acting Governor .. .. .") .") contemplates contemplates a series of events—something happens to the and then something the elected elected Governor Governor and something happens to the the elected elected III, section section 11 prohibits any person 77 For For example, example, Article Article III, person from from exercising exercising the two branches branches of government "except "except in in cases hereinafter expressly directed powers of two or permitted." The primary exception to this separation The primary exception to this separationofofpowers powersprovision provision originally originally lay in article IV, sections sections 15 and 18, which called for the Lieutenant 18, which called the Lieutenant Governor 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 succession. the Senate Senate and and Speaker Speakerof ofthe the House House of of Representatives to the the line of succession. The The Honorable Honorable David David Johnson Johnson State Senator State Senator 20 Page 20 Lieutenant purpose of of Lieutenant Governor. Governor.As Asthe the Oregon Oregon Supreme Supreme Court Court noted, noted, the the purpose creating to ensure ensure the theautomatic automatictransfer transferofofpower—to power—to creating a line of succession is to ensure that thatsomeone someone is isalways alwaysendowed endowed with with the thepowers powersof ofChief Chief Magistrate. Magistrate. See Olcott II, 187 P. at 289. We Webelieve believe that thatwas was also also the thepurpose purposeof ofarticle article IV, IV, See Olcott at 289. section 19—to extend line of ofgubernatorial gubernatorial succession succession beyond beyond the section 19—to extend the the line lieutenant governor. lieutenant governor. Inserting Insertinga anewly-appointed newly-appointed "replacement" "replacement" lieutenant lieutenant governor in that order would interrupt the line the framers deliberately governor in that would interrupt the line the framers deliberately chose and make fully carried carried out. out. and make it it impossible impossible for section 19's 19's provisions provisions ever to be fully Moreover, allowing new lieutenant lieutenant governor governor Moreover, allowingfor forthe the appointment appointment of of a a new would subvert the elective elective principle the Iowa Iowa framers framers clearly clearly endorsed. endorsed. would principle that that the Like predecessor, under our Constitution Constitution an appointed appointed lieutenant Like his his or or her predecessor, governor would wouldassume assume the the powers and duties upon the governor's governor duties of of governor governor upon governor's removal,orordisability. disability. In In other death, resignation, resignation, removal, other words, words, if a a lieutenant lieutenant governor who who becomes becomes governor governorcan can appoint appoint aa new new lieutenant, lieutenant, Iowa could have governor a governor governor who who was was not not elected elected by by the the people. people. This This would would be a a particularly particularly unpalatable primaiy reason reason for for creating creating the the office office of of unpalatable result result because because a a primary lieutenant the 1857 1857 constitutional constitutional convention, convention, was to lieutenant governor, as as expressed at at the ensure that that the the person person first firstin inthe theline lineof ofsuccession succession was was aastatewide statewide elected elected See Mitchell, official. See Mitchell, 34 P.2d at at372 372(concluding (concluding an an unelected unelected governor governor "was never contemplated contemplated and and never never intended intended by by the the framers of the Constitution, never 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 . that intended .. .. . thatany any person, person,who who has hasnot notreceived received the the sanction sanction of of the electors should be appointed to aa position by direct vote, vote, should position which which would would entitle entitle him, in certain eventualities, certain eventualities,to tothe thehigh highoffice officeof ofgovernor."). governor."). Finally, as as we Finally, we have have noted, noted,section section 17's 17'sdevolution devolution provision provision applies applies equally to to both both permanent permanent and and temporary temporary disabilities. disabilities. So So must the answer to equally this question. question. While WhileGovernor Governor Branstad's Branstad's prospective prospective resignation resignation would would be permanent, it is is easy easy to toimagine imagine situations situationswhich whichwould would remove remove aagovernor governor from office officeonly onlytemporarily. temporarily.For Forexample, example,on onJune June29, 29, 2002 2002 and and July 21, from 21, President Dick DickCheney Cheneyassumed assumedthe the powers powersand and duties duties of the 2007, Vice Vice President presidency while while President President George GeorgeW. W.Bush Bushunderwent underwent medical medicalprocedures. procedures. If If assumed the power the lieutenant lieutenant governor governor assumed power and duties duties of ofthe thegovernorship governorship under similar circumstancesand and appointed appointed a a new under similar (temporary) (temporary) circumstances new lieutenant lieutenant governor, what what would would happen happen to those governor, those two two officials officials upon upon the thetemporarilytemporarilydisabled governor's governor'sreturn return to to the office for the disabled office of of Governor? Governor? Allowing Allowing for appointment of a new lieutenant appointment lieutenantgovernor governor during during aatemporary temporaiy disability disability would would the Governor were.. .. . See Mitchell, be an absurd result. See Mitchell, 34 P.2d at at372 372("[I]f ("[I]f the Governor were it could could hardly be argued unable temporarily to perform the duties duties of of his his office, office, it that while the Lieutenant Governor was discharging the that while the Lieutenant Governor discharging the duties duties of ofthe theoffice office of of Heller, 42 A. Governor, he he could Governor, could appoint appoint aaLieutenant LieutenantGovernor."); Governor."); Heller, A. at 158 158 (concludingaa vacancy vacancy in in the lower made little (concluding lower office office made little sense sense for for temporary temporary The Honorable Honorable David DavidJohnson Johnson The State Senator State Senator 21 Page 21 disabilities and disabilities and "could "could not have have been been within within the thecontemplation" contemplation" of those those drafting the constitutional constitutionalprovision). provision). The The subsequent amendments to article 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 be If there and the be aavacancy vacancy in in the theoffice office of of Governor Governor and Lieutenant Lieutenant Governor Governorshall shall by by reason reason of of death, death,impeachment, impeachment, resignation, resignation, removal removal from from office, or other office, or other disability disability become become incapable incapable of of performing performingthe the duties duties pertaining to the pertaining to the office office of of Governor,the the President Presidentpro protempore temporeof ofthe the Senate Senate shall shall act act as Governor, Governor Governor until until the vacancy is filled or the the disability removed. .. .. .. filled or Like its its predecessor, this this version of section section 19 contemplates a series of Like of events events where is first incapacitated the lieutenant governor— where the governor governor is incapacitated and then then the lieutenant governor— while exercising exercising the while the powers powers and and duties dutiesofofgovernor—becomes governor—becomes incapacitated. incapacitated. Just like the Just like in the 1952 the original original 1857 1857 constitution, constitution, nothing nothing the 1952 amendments amendments contemplates that that there there is is aavacancy vacancyin inthe theoffice office of of lieutenant lieutenantgovernor governor when See Ekern, 280 N.W. at 398-99 the sitting governor the sitting resigns or or dies. governor resigns dies. See Bkem, 280 N.W. at 398-99 (concluding (concluding under under language materially identical identical to to revised revised article IV, section 19 19 that there is no lieutenant governor vacancy when the powers and duties that there is no lieutenant governor vacancy when powers duties of of governor governor devolve). devolve). Tellingly, Tellingly,the the historical historical practice practice of of not not appointing appointing a a new new lieutenant governor continued following the death of governor continued following the of Governor Governor Beardsley Beardsley in 1954 and the the 1952 1954 the resignation resignation of ofGovernor Governor Hughes Hughes in in 1969—after 1969—after the 1952 amendments. amendments. As noted previously, in 1988 article IV the previously, in IV was amended to provide provide for the election of of governor governorand andlieutenant lieutenant governor governoron onthe thesame same ticket ticket and and to to alter alter the the election duties by by removing removingher her role role as as president of the the senate. lieutenant governor's governor's duties senate. amendments also The 1988 amendments 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 the the elective elective principle. principle. Nothing in the 1988 altered the the line Nothing in 1988 amendments amendments specifically specifically altered line of of succession outlined outlinedin in sections sections 17 17 and and 19. do not succession 19. Contemporary Contemporary editorials editorials do indicate that the indicate the voters voters contemplated contemplated anything anything other than than the thesingle-ticket single-ticket Preventive See, e.g., Editorial, duties.8 issue and and the the lieutenant lieutenant governor's governor's duties.^ See, e.g., Editorial, Preventive Des Moines Reg., Oct. Oct. 16, 16, 1988, at 2C; Maintenance, Maintenance, Des Moines Reg., 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 gubernatorial succession succession were werepresented presentedto to the the voters voters as as mirroring the addressing mirroring the succession of of the federal by this time had adopted the 25th succession federal government—which government—^which by this time had adopted the 25th Amendment. Utah Amendment. Utah Op. Op.Att'y Att'y Gen. Gen.No. No. 03-001, 03-001,2003 2003WL WL 21996258 21996258 (Utah (Utah Att'y Att'y Gen. Gen. Aug. 18, 2003). 18, 2003). The The Honorable Honorable David DavidJohnson Johnson State State Senator Senator 22 Page 22 Lt. Gov. Run as Lawmakers Seek to to Have Have Governor, Governor, Lt. Gov. Run as Team, Team, Des Moines Moines Reg. Reg. (Feb. (Feb. 3, 3, 1988); 1988); Thomas Thomas A. A. Fogarty, Fogarty, Voters to Decide if if Governor, Governor, Lt Lt. Gov. Should Should Run Team, Des Moines Moines Reg. (Apr. 1988); Linda Linda Lantor, Lantor, Lieutenant Run as aa Team, (Apr. 13, 1988); Lieutenant Governor Winners, Des Moines Moines Reg. Reg.(Nov. 1988). GovernorAmendments Amendments Big Winners, (Nov. 9, 9, 1988). The 1988 1988 amendments' amendments' failure failure to to alter alter the the line of succession succession or or address address The the question the question of aa vacancy vacancy in in the theoffice office of oflieutenant lieutenant governor governor is striking striking considering the the intervening interveninghistory historybetween between1952 1952and and 1988. 1988. Originally considering Originally the U.S. Constitution contained language language mirroring mirroring Iowa's Iowa's devolution devolution framework. framework. The U.S. Constitution, Constitution, however, however, was amended in 1967 following following the the The U.S. was amended in 1967 assassination The 25th 25th Amendment Amendment to the United United assassination of of President President Kennedy. Kennedy. The to the States Constitution expressly vice president president becomes becomes States Constitution expressly provided providedthat that the vice president and and granted granted the the President the authority president President the authority to appoint appoint a a new new vice vice president with Congressional approval. approval. U.S. 2. president U.S. Const. Const, amend. amend. 25, 25,§§ 1, 2. Iowa's legislators legislators and and voters in 1988 aware of the the change Iowa's 1988 were were obviously obviously aware the federal system; system; President Ford became the first unelected U.S. President in the 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 to adopt the the amendments inaction, by declining inaction, declining to the federal federal model, model, we believe believe the ratified ratified our our historical precedent—namely, precedent—namely,that that the the lieutenant lieutenant governor governor assumes assumes and duties of governor, governor, but but does does not not appoint appoint a a new new lieutenant lieutenant the title, powers, and 846 N.W.2d 845, 862 2014) 43.24 Panel, governor. Panel, 846 N.W.2d 845, 862 (Iowa 2014) governor. See Chiodo v. Section 43.24 (Mansfield, (Mansfield, J., J., specially concurring). concurring). Because it it is our Because our opinion opinion that thatupon upona agovernor's governor's resignation, resignation, the the will hold hold both the lieutenant governor governor will the Office Office of of Governor Governor and the the Office Office of of as expressly permitted by Article IV,section section 14, 14, there there is Lieutenant Governor, as Article IV, P. at at 4 181 P. lieutenant governor no vacancy vacancy in the the office office of lieutenant governor to to be be filled. filled. Cf. Olcott I, (relying on on "except "except as as permitted" language language to to conclude an individual could 481 (relying "hold the the offices ofgovernor governorand andsecretary secretaryofofstate stateat atthe the same same time"). lime"). As As a "hold offices of result, under under these these facts, facts,Iowa Iowa Code Code section section 69.8 does does not not apply. apply. See Iowa Code § § 69.8(2) (referring to to the governor "a vacancy in the Code 69.8(2) (referring governor filling filling "a the office office of of (emphasis added)). added)). Consequently, we we need need not opine on lieutenant governor" governor" (emphasis statute's constitutionality.9 the statute's constitutionality.^ that if C. Answer. Answer, It is our opinion that if the the governor governor resigns and the powers devolveupon uponthe the lieutenant lieutenant governor, governor, that that person does and duties duties of of the the office office devolve 99 Because it is not not the the factual factual context context in in which which you have asked your questions, questions, we do not address address whether whether section section 69.8 69.8 would would be be applicable applicable if if the lieutenant lieutenant governor governor resigned or died in office while the governor remained. The Wisconsin Supreme office while the governor remained. Wisconsin Supreme Court has suggested lieutenant governor has suggested that thataavacancy vacancyin inthe theoffice office of of lieutenant governor exists in that factual scenario, but upon the the lieutenant lieutenant scenario, but not notwhen when the the powers powers and and duties dutiesof ofgovernor governor devolve devolve upon 280 N.W. at 399. governor. See F/cem, 280 at 399. See Ekern, governor. The Honorable Honorable David DavidJohnson Johnson The State Senator Senator State 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 dutiesof ofthe theoffice officewill will devolve devolve or fall upon the does not not ascend or fall the lieutenant lieutenantgovernor—who governor—who does or rise rise to to the theoffice office of of Governor. under our Governor. However, However, under our constitutional constitutional framework, framework, by possessing possessing the powers and duties of powers and of the the chief chief magistrate, magistrate, the thelieutenant lieutenantgovernor governor becomes becomes governorfor forall allintents intents and and purposes, is entitled governor entitled to to use use the thetitle titleof ofGovernor, Governor, for the the remainder of the the term. term. and is is entitled entitled to to the the compensation compensation of of governor governor for The lieutenant lieutenant governor governortakes takes on on this this authority she is The authority because because she is lieutenant lieutenant governor. In governor. In other other words, words,upon upon aagovernor's governor's resignation, resignation, the the lieutenant lieutenant governor will will hold hold both both the the offices offices of ofGovernor Governorand andLieutenant 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 of a new lieutenant governor would disregard Iowa's historical appointment a new lieutenant governor would disregard Iowa's historical practice, violate violatethe the elective electiveprinciple, principle,and andinterrupt interrupt the the clear, clear, tight tight and practice, and complete line line of ofsuccession successionset set out out in in our our constitution. constitution. complete Very truly yours. yours, Very truly 1..0221 ThomaJ^Miller Thomas Miller Attorney General S. Thompson Jeffrey S. Solicitor General Meghan L. Gavin Assistant Assistant Attorney Attorney General David M. Ranscht Ranscht David Assistant Assistant Attorney Attorney General General