When former Missouri Gov. Eric Greitens resigned on June 1, the line of succession was clear: then-Lt. Gov. Mike Parson would become the new chief executive. But the state constitution didn’t clearly state who should replace Parson. A few weeks later, Parson, claiming constitutional authority, appointed then-Senate Majority Leader Mike Kehoe to be the new lieutenant governor. (Greitens, Parson and Kehoe are all Republicans, the dominant political affiliation in the increasingly-conservative state.)
In response to Kehoe’s appointment, the Missouri Democratic Party filed a lawsuit claiming the governor has no constitutional authority to fill a vacancy in the office of lieutenant governor. Circuit Judge Jon Beetem ruled against the Democrats, mainly on procedural, as opposed to constitutional, grounds, saying the specific plaintiffs in the case had no right to seek removal of a public official via litigation.
Since the ruling, the Democratic Party has appealed the case to the Missouri Supreme Court. Should the high court take up the case and rule against Kehoe, it could trigger a special election to fill the office or result in a vacancy unfillable until the 2020 general election. But should the Supreme Court rule for Kehoe, or simply refuse to hear the case, it will put to bed a thorny constitutional issue that has plagued Missouri politics for decades.
The case for Kehoe’s appointment
In this case, precedent favors the defendant. In 2000, Gov. Mel Carnahan, a Democrat, died in a plane crash. Then-Lt. Gov. Roger Wilson was tapped as the new chief executive. Wilson in turn appointed Joe Maxwell to fill his old position, an office he held for another five years. Though Maxwell had recently been elected to the office of lieutenant governor prior to his appointment, he assumed office before his official term began.
Article IV, Section 10, of the Missouri Constitution says: “There shall be a lieutenant governor who shall have the same qualifications as the governor.” That seems to imply the position must be filled in cases of a vacancy.
Further, Article IV, Section 4, of the state constitution says: “The governor shall fill all vacancies in public offices unless otherwise provided by law.” Article IV, Section 5, says: “The governor shall commission all officers unless otherwise provided by law.”
When taken together, these provisions seem to imply the governor not only has the constitutional authority to appoint his lieutenant, but that he also has a specific obligation to do so.
The case against Kehoe’s appointment
However, Section 105.030 of the Missouri Revised Statutes says: “Whenever any vacancy, caused in any manner or by any means whatsoever, occurs or exists in any state or county office originally filled by election of the people, other than in the offices of lieutenant governor, state senator or representative, sheriff, or recorder of deeds in the city of St. Louis, the vacancy shall be filled by appointment by the governor…”
Opponents of Kehoe’s appointment take this provision to imply that the lieutenant governor cannot be appointed by the governor, as this section of the Revised Statutes excludes the position from the governor’s vacancy appointment powers.
Why Kehoe’s appointment is indeed constitutional
Personally, I side with the governor’s lawyers on this case. If the Missouri Supreme Court proceeds with oral argument and then issues a definitive ruling, the judges should side with Kehoe.
The ambiguity in the constitution is a bit problematic; it’d be much better if the language were a bit more clear. However, the constitution specifically says there “shall be a lieutenant governor.” There’s no getting around that provision. The state constitution is the supreme law of the land (unless it contradicts federal law), and it must be adhered to over any subsidiary statute.
When the Missouri Revised Statutes, in the section quoted above, specifically exclude the office of lieutenant governor from those the governor can fill through appointment, they are not forbidding the governor from appointing his lieutenant — the section is merely specifying that its particular language does not apply to the lieutenant governor position. Were the provision meant to forbid the governor from appointing a lieutenant governor, it would need to explicitly state that such was the case.
Therefore, we should treat the lieutenant governor position as we do other state offices, such as the office of the state auditor, for whom there is no constitutional question as to whether the governor has the ability to appoint a temporary replacement in cases of midterm vacancies. We should adhere to Article IV, Section 4, of the state constitution, which commands the governor to appoint individuals to fill vacancies in public office unless the law says otherwise, because, in fact, the law does not say otherwise.
Kehoe should be able to stay in office until 2020. After that, he must, as any other lieutenant governor would, either run for re-election or surrender his position. ■