Johnson seeking official opinion from Iowa AG

Wednesday, February 1, 2017
Sen. David Johnson

District 1 senator questions potential state transition of governor’s office

Sen. David Johnson, I-Ocheyedan, representing District 1, sent a letter to Iowa Attorney General Thomas Miller seeking an official opinion by Feb. 15 as it relates to the duties of a duly elected and serving lieutenant governor of the state of Iowa upon the resignation,

removal, or incapacity of the elected and serving governor of the state of Iowa.

Johnson suggested in his letter that if public statements and reports are correct, Iowa's “long-serving” Gov. Terry Branstad has been or will be nominated by President Donald Trump to become the ambassador to China. He suggested the reports indicate the United States Senate could move to approve Branstad’s appointment in the next several months.

“Governor Branstad has indicated he will resign his position as chief executive of the state of Iowa in order to begin service as a U.S. ambassador. Once he does resign, it would appear that his duties, but not his office or his title, would be assumed by Lt. Gov. Kim Reynolds,” Johnson stated in his letter.

He continued, “Some reports, however, have indicated she would be administered the oath of office as governor of the state of Iowa immediately upon Gov. Branstad’s resignation and succeed to his office and powers.”

“Thus, the questions ... need immediate research and answers so that your official opinion is published before any resignation, vacancy, succession, or administration of oaths of office to persons claiming to succeed to powers or position of the office of the governor, or as the case may be, to the office of the lieutenant governor, can occur.”

Johnson indicated that as to his knowledge, no litigation or formal proceeding has been scheduled.

“Any such litigation regarding vacancy or succession questions specific to Lt. Gov. Reynolds, it would seem to me as a layman, would need to await the resignation of Gov. Branstad. So, by issuing your official opinion on an expedited basis as requested, you likely will provide the greatest service to the citizens of the state of Iowa and can do so without fear that litigation will intercede or interfere.”

Noting his nine questions, he added in his letter, “As we all recognize, General Miller, the weight and importance of these questions are significant to our great state. I, as well as my constituents, look forward to your thoughtful, detailed, apolitical and fresh analysis.”

Johnson asked Miller to “not simply rely on the precedent of a predecessor’s 1923 opinion. The issues raised below appear to some as unanswered or incorrectly answered by past formal and informal guidance by the office of the attorney general.”

Johnson wrote: “As you may further know, I was elected to the Iowa General Assembly by the people of Iowa Senate District No. 1 and presently am their duly serving member of the Iowa State Senate.

The Ocheyedan senator pointed out in his letter, “... in 2016 I declared as an independent — I do not serve in the present session of the General Assembly as a Republican or as a Democrat. As of now I believe I am the only independent serving in the Iowa General Assembly.

“My status as an independent bestows upon me a special interest in the subject matter of the official opinions I seek below and positions me uniquely to seek legal answers to the specific questions ... in a non-political, non-partisan manner,” Johnson wrote, suggesting he has no conflict in asking the questions. He also informed Miller that his standing as a state senator will not be impacted by the answers he provides in an official opinion.


What does Senator Johnson want answered?

Sen. David Johnson's request for a formal opinion from Iowa Attorney General Thomas Miller is tied to nine legal questions arising under Iowa Constitution Article IV regarding the potential transfer of power in the state’s administration office should Iowa Gov. Terry Branstad assume the role of ambassador of China as nominated by President Donald Trump.

1. When the governor of the state of Iowa’s resignation becomes effective and the powers and duties of the office for the residue of the term shall devolve upon the lieutenant governor, does the lieutenant governor succeed to the office, title, position, and powers of the governor of the state of Iowa, or instead does the lieutenant governor continue in the office, title, and position to which elected, but thereupon shall hold the

powers and duties pertaining to the office of the governor for the remainder of the current term?

2. If the lieutenant governor succeeds to the office of governor, not just the powers of the chief executive, what was the framers’ intent in selecting the language of Article IV, Section 17 of the Iowa Constitution regarding the obligation of the lieutenant governor “to act as governor” and to declare the “powers and duties of the office for the residue of the term” will then“devolve upon the lieutenant governor,” and what does that language mean in light of the upward promotion of the lieutenant governor to the office of governor rather than the downward devolvement of powers to her as an acting governor?

3. After 12:01 a.m. on April 1, 2017, after the powers and duties pertaining to the office of the governor have devolved to the lieutenant governor, has the office of the governor become filled?

4. After 12:01 a.m. on April 1, 2017, after the powers and duties pertaining to the office of the governor have devolved to the lieutenant governor, did the lieutenant governor succeed to the office as a chief magistrate with the vested supreme executive power of the state of Iowa and with the title styled as the governor of the state of Iowa?

5. After 12:01 a.m. on April 1, 2017, is the office of the governor of the state of Iowa vacant? If so, how and when is that vacancy filled?

6. After 12:01 a.m. on April 1, 2017, is the office of the lieutenant governor of the state of Iowa vacant? If so, how and when is that vacancy filled? If your answer refers to Iowa Code § 69.8, is that provision inapplicable in light of Iowa Constitution Article IV, or otherwise unconstitutional?

7. After 12:01 a.m. on April 1, 2017, after the powers and duties pertaining to the office of the governor have devolved to the lieutenant governor, does that person acting in the capacity of governor have the ability to appoint a successor lieutenant governor under Iowa Constitution Article IV, Section 10, or does Iowa Constitution Article IV, Section 19 constitute a mode provided by the Constitution that supersedes a governor’s appointment powers under Iowa Constitution Article IV Section 10?

I have two final questions arising under another provision of the Iowa Constitution. They relate to oaths. Iowa Constitution Article XI, Section 5 states: “Every person elected or appointed to any office, shall, before entering upon the duties thereof, take an oath or affirmation to support the constitution of the United States, and of this state, and also an oath of office.”

Under the facts outlined above:

8. Could an oath of office be administered constitutionally to the lieutenant governor after 12:01 a.m. April 1, 2017 to serve as governor of the state of Iowa when the person to be sworn into office neither would have been elected nor appointed to that position?

9. If so, who would be empowered constitutionally to administer that oath?

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