Last week, the Missouri Supreme Court upheld the appointment of Lt. Gov. Mike Kehoe, giving an official interpretation to a decades-old constitutional question.
In a 5–2 opinion, the Supreme Court declared that, in cases of a vacancy in the office of lieutenant governor, the governor has the power — and, as we should infer, an obligation — to appoint a replacement.
The case stems from last summer’s office-shuffling in the wake of former Gov. Eric Greitens’ sudden resignation. Greitens, facing likely impeachment by the Missouri General Assembly, vacated the governor’s mansion in June.
What followed was a crash course in Missouri constitutional law — and an attempt by the minority party to claw back power.
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 Floor 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 high court did indeed take up the case, and we now have its decision. The plaintiffs had standing to sue for the removal of a state official via litigation. Additionally, the office of lieutenant governor, which faces routine election every four years, may and shall be filled by appointment of the governor in cases of an interim vacancy.
Missouri’s constitution is frustratingly vague
But why was this power of appointment ever in question in the first place? It all comes down to a demanding “shall,” a tricky “unless” and a mistakenly construed “other than.”
As I previously explained:
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.
Additionally, history seems to be on Kehoe’s side:
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.
However, Missouri’s statutory code does anything but clarify the framers’ intention. This is where things get complicated, and a misunderstanding is completely excusable:
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.
At first glance, it seems to be a tricky case. The constitution doesn’t clearly say that the governor may or shall appoint the lieutenant governor in cases of vacancy, and it almost seems as if the above statute implies the lieutenant governor may never be appointed.
However, things aren’t quite as complicated as they might appear.
How the Supreme Court made sense of Article IV
Here’s how the Supreme Court decided the case.
In its opinion, the high court first establishes the central issue in question:
The Governor of Missouri’s authority to appoint a Lieutenant Governor derives from article IV, § 4 of the Missouri Constitution which provides: “The governor shall fill all vacancies in public offices unless otherwise provided by law …” (emphasis added).
The crux of this case is resolved by interpreting what was intended by the phrase “unless otherwise provided by law,” a phrase which was included in the provision at the time the Missouri Constitution was enacted. Using the words’ plain, ordinary meaning in the context of the constitution, the Governor has the constitutional authority to fill all vacancies in public offices unless another way of filling the vacancy is furnished by law.
The judges then proceed to dismantle the arguments of Darrell Cope, the main plaintiff:
Cope acknowledges “Missouri law … provides no way to fill a vacancy in the office of Lieutenant Governor.” However, he relies on § 105.030 to support his argument that “the General Assembly’s intent that should a vacancy arise in the office of Lieutenant Governor, the office will remain vacant until the next applicable election.”
… Cope’s argument — that this statute shows an intent for the listed offices to remain vacant should a vacancy occur — ignores that the law provides a way to fill every office expressly mentioned in the statute apart from Lieutenant Governor.
… the constitution is clear, the Governor may fill all vacancies in public offices unless the law provides an alternative method. Cope does not dispute there is no alternative method. Therefore, article IV, § 4 controls the authority of the Governor to appoint a Lieutenant Governor, and Governor Parson was within his constitutional authority when he appointed Kehoe to the office of Lieutenant Governor.
Simply put, the constitution, as a baseline, grants the governor the power to appoint all vacant offices. However, this does not apply if state statute designates an alternative method of selection for a specific vacant office; in such a case, the statutory method of selection would prevail. But state statute grants no alternative method of selection for the office of lieutenant governor, even though it does so for all other relevant offices.
Whereof the Revised Statutes are silent, thereof the governor may exercise his Article IV powers of appointment.
And because the constitution states that there shall be a lieutenant governor, we should infer that the governor must select a successor whenever the office becomes vacant.
Thus, Parson did not act out of bounds, constitutionally speaking, in selecting his replacement. Kehoe is the legitimate lieutenant governor of Missouri, as will be any future lieutenant governor likewise appointed. ■