Legal Questions Surround Attorney General’s Opinion on Lt. Governor’s Authority

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DES MOINES, Iowa -- Does she or doesn't she? That is the question tonight surrounding Lieutenant Governor Kim Reynolds and whether she has the authority to appoint her successor when she becomes governor.

First, Attorney General Tom Miller said yes, Reynolds does. Now he's saying no, she doesn't. Monday's announcement leaves political leaders wondering where things stand and is drawing sharp criticism from the Secretary of State, Republican Leadership in the Legislature, and of course from the Office of the Governor.

"I was really surprised, and I was surprised kinda given the timeline that we've seen here that he came out with. He said he researched the law in December and we've had many, many months since then, so I expected him to just reaffirm the opinion that he'd given before," said Ryan Koopmans, a constitutional attorney with Nyemaster Goode PC. Koopmans, who has represented Governor Branstad before on other cases, says Miller got it right the first time, before he announced his change of opinion on Monday.

"The lieutenant governor will become governor and obviously as a matter of common sense, if you leave a job and go to another one, if you leave one office and go to another one, that one is vacant so when she becomes governor, the Office of Lieutenant Governor is vacant and the Iowa law is very clear: in the 2009 statute that says that the governor gets to appoint the replacement," said Koopmans.

In explaining his reversal, Miller cited precedent in other states.

"Can she appoint a replacement lieutenant governor, and here again we start by looking at what did the other states do, and on this, whether there's a vacancy in the Office of Lt. Governor when devolve language is used is not a split decision. It's overwhelmingly on one side. It's overwhelmingly in terms of the other states that the position of the lieutenant governor does not become vacant," said Miller.

And that is the key legal question--is there a vacancy? Koopmans has a very different interpretation of what precedent in other states shows.

"All of the courts have said that the lieutenant governor becomes governor and then that office becomes vacant," he said. "So, the first one was Arkansas actually when the-governor Bill Clinton was elected president, went off to Washington, D.C., and the Arkansas Supreme Court said that his lieutenant governor became governor, that then he vacated the lieutenant governor's office and then actually Mike Huckabee filled that vacancy a short time later. Their statute is that there was a special election instead of an appointment, but it's the same thing."

Koopmans says he's never seen anything like this, where a judge or an attorney general has said someone can hold two offices at the same time, and that this violates state law, the constitution, and common sense.