DES MOINES, Iowa (AP) — Iowa's attorney general has concluded that Lt. Gov. Kim Reynolds will not have the power to appoint a lieutenant governor when she replaces Gov. Terry Branstad, a surprise reversal that infuriated Republicans and set up a potential constitutional showdown.
Reynolds is preparing to become governor when Branstad resigns to become U.S. ambassador to China, which is expected to happen once he's confirmed by the U.S. Senate. In a legal opinion released Monday, Democratic Iowa Attorney General Tom Miller said Reynolds will have the title and powers of governor through January 2019 but not the authority to choose a new lieutenant.
His opinion cited the wording of the Iowa Constitution and 140 years of historical precedent. But it was a reversal from December, when Miller agreed with the Republican administration that Reynolds would have the power to pick a new No. 2.
If she follows Miller's advice, Reynolds will not have a lieutenant who could travel Iowa promoting her administration while serving as her running mate for the 2018 election, when she's expected to seek a four-year term against Democratic and possible Republican challengers. If she ignores Miller and appoints someone, she will likely face a court challenge and be accused of exceeding her authority. Miller's opinion isn't binding but would have influence in court.
Reynolds denounced the timing and conclusion of Miller's opinion, saying she believed his earlier guidance was correct and that she was considering moving ahead with an appointment. Reynolds has already vetted several candidates in anticipation of a pick.
"This politically motivated opinion defies common sense," added Branstad, who faces a confirmation hearing Tuesday in Washington.
Branstad and Reynolds argue she has the authority under a 2009 law that says, in the event of a vacancy in the lieutenant governor's office, the governor can appoint a replacement. Republican Secretary of State Paul Pate said Monday his office agrees, calling Miller's opinion "confusing and unnecessary" and saying Reynolds has the authority to move forward.
Republicans who control both houses of the Legislature denounced Miller's opinion.
"This is clearly a partisan move to muddy the waters in an attempt to delegitimize Lt. Gov. Reynolds as she becomes our next Governor," House Speaker Linda Upmeyer and House Majority Leader Chris Hagenow said.
But attorney Gary Dickey, who served as general counsel for Gov. Tom Vilsack, said Miller arrived at the correct decision under the Constitution and "very persuasive" historical precedent. He said any appointment by Reynolds would likely be challenged by him or other attorneys who will be watching to ensure the Constitution is followed.
Miller told reporters he hoped Reynolds won't ignore his advice, saying "we all have the obligation to follow the law."
"The best statement of the law currently is an attorney general's opinion," he said, calling it thorough and impartial.
Making an appointment "would be asserting her position of what she thinks the law is," said Miller, who has served as the state's top lawyer for decades.
Miller issued the opinion in response to a request from Sen. David Johnson, an independent who thanked Miller "for the many hours devoted to researching the constitutional issues at hand."
"I also applaud General Miller's commitment to getting it right," Johnson said.
Miller struggled with the decision but concluded that a provision of the constitution offered clear guidance. That provision says the governor's powers "devolve upon the Lieutenant Governor" if the governor resigns. It says those powers transfer to the Senate president should the new governor "be impeached, displaced, resign, or die" during the term. Miller said the authors of the 1857 constitution wanted officials in line to be governor to have been elected.
Miller noted that in the four previous times when a lieutenant governor replaced an Iowa governor — in 1877, 1908, 1954 and 1969 — they didn't appoint new lieutenants. He said the 2009 law didn't apply in the event of a governor's resignation, saying there is no lieutenant governor's vacancy to fill.