The Missouri Supreme Court in Jefferson City heard arguments Wednesday in a lawsuit by Democrats wanting a declaration that Republican Governor Mike Parson is not authorized to appoint a Lieutenant Governor.

Missouri Supreme Court – Image courtesy of Missouri Courts

Parson was Lieutenant Governor until he took the oath of office as governor June 1, replacing Republican Eric Greitens who resigned from office amid scandals and misconduct accusations.  Parson appointed Republican Senate Majority Floor Leader Mike Kehoe of Jefferson City, as lieutenant governor on June 18. The Missouri Democratic Party and World War II veteran Darrell Cope of southwest Missouri’s Hartville filed a lawsuit the next day.

During the circuit court proceedings, the plaintiffs backed off their request for the court to order Kehoe removed as lieutenant governor and instead asked for a non-binding declaration that the governor lacks authority to make to the appointment.

The change in the plaintiff’s case came because, under Missouri law, private plaintiffs have no authority to seek to remove statewide officials from office.

Cole County Circuit Court Judge Jon Beetem struck down the lawsuit, saying Parson had the authority to appoint a lieutenant governor and determined the Democratic Party and Cope did not have standing to challenge the governor’s appointment.

Beetem’s decision acknowledged the plaintiffs lacked authority to remove the lieutenant governor by litigation.

The Judge accepted the state argument by First Assistant Attorney General John Sauer on behalf of Parson and Kehoe.  Sauer put forth that the exclusive method to remove statewide officials from office is by action of a government attorney, which would be the Attorney General or the local prosecutor in Cole County where state offices are located.   Sauer further said the only recognized method under the state Constitution to remove a statewide “elective executive official,” such as the Lieutenant Governor is impeachment by the legislature.

Before the high court Wednesday, Sauer said the governor can make the appointment because the legislature hasn’t passed a law preventing him from doing so.  “The power to fill executive offices is a core incident of executive power that’s vested in the Governor by Article IV, Section 4,” said Sauer.  “The legislature would have to speak very clearly if it wanted to displace that.  And it has not done that.”

The court case mainly involved arguments over one sentence in the Missouri Constitution: “The governor shall fill all vacancies in public offices unless otherwise provided by law.”

The plaintiffs, the Democratic Party, and Cope claim the phrase “unless otherwise provided by law” means that the legislature can remove the governor’s authority to make an appointment without providing another manner with which to fill a vacancy.

They pointed to another older passage in Missouri law that stipulates how vacancies are filled as placing a specific limitation on the Governor’s appointment authority.  The statute states that a vacancy in an elected office “other than lieutenant governor, state senator or representative, sheriff, or recorder of deeds in the city of St. Louis, shall be filled by appointment by the governor.”

Circuit Court Judge Beetem agreed with the state, representing Governor Parson and Lieutenant Governor Kehoe, that the meaning of “unless otherwise provided by law” is “unless the law furnishes or supplies a different manner of filling the vacancy.”  He said that because Missouri law does not ‘furnish’ or ‘supply’ a method of filling the vacancy in the office of Lieutenant Governor, Governor Parson was authorized to appoint Kehoe as Lieutenant Governor.

In briefs filed with the Supreme Court, Attorney Matthew Vianello who represents the Democratic Party and Cope said the proper interpretation of “unless otherwise provided by law” in the Missouri Constitution is that it authorizes the legislature to determine the Governor’s power to fill vacancies in public office.  He claimed lawmakers did so by enacting a law barring the Governor from filling vacancies in, among other elected offices, the Lieutenant Governor.

Vianello further states that if the governor is allowed to fill the office of Lieutenant Governor, then the law passed by the legislature forbidding the action would have no meaning.  He contends courts are not supposed to interpret laws in a way that renders them meaningless.

The plaintiff’s counsel also points out that the state’s interpretation of the constitutional provision for governor appointments could result in a person becoming governor without the approval of the people through a public vote.  “That’s the issue, whether the constitution sets a mechanism to ensure that we have an orderly succession of democratically elected or appointed officials to the highest office, or whether it is a system of appointment by one person,”  Vianello told reporters after Wednesday’s Supreme Court arguments.

Vianello pointed out in his briefs that if Governor Parson leaves office before his term is up, Kehoe, an appointed Lieutenant Governor would become Governor.

Another bone of contention between the two sides is whether the office of Lieutenant Governor is essential to the operation of the state.

Assistant Attorney General Sauer argues the person holding the seat is an important representative of numerous public interests.  He points out that in addition to being first in the line of succession to replace the Governor and the one who casts the deciding ballot in a tie vote in the Missouri Senate, the Lieutenant Governor by law is a member of numerous state commissions.  Sauer also notes the Lieutenant Governor serves as the State’s veterans’ advocate, making it a priority to increase awareness of state and federal programs to assist veterans and their families.

Vianello argues for the plaintiff’s that state government would continue to function and provide services to Missourians with or without a Lieutenant Governor.  He notes that all the commissions the Lieutenant Governor sits on have other members capable of voting, and without his vote as a tie-breaker only means a bill would not pass, which can happen even with a Lieutenant Governor in office.  Vianello also pointed out that there would be a functional line of succession for Governor without a Lieutenant Governor as the Senate President Pro Tem is identified in the Constitution as the next officeholder to fill the spot.

To back up his argument, Vianello’s court filing also lists several Missouri cases where the Lieutenant Governor’s office went vacant, mostly in the 1800’s.

Vianello also compared the Lieutenant Governor’s office to the U.S. Vice President. Despite 18 vacancies in the Vice President’s office over the years, only twice have they been filled — both times after the passage of the 25th Amendment in 1967. The first occasion occurred in 1973 when Gerald Ford was appointed Vice President following the resignation of Spiro Agnew. The second was in 1974 when Nelson Rockefeller was appointed Vice President following Ford’s elevation to President.

Sauer countered Vianello’s argument in his briefs that more recently, in November 2000, Democratic Governor Roger Wilson appointed Democrat Joe Maxwell to fill the vacancy created by Governor Wilson’s move to Governor when head of state Mel Carnahan died.

In his briefs, he also stipulated that five Governors, including three Democrats — Wilson, Jay Nixon, and Bob Holden, along with two Republicans — Kit Bond and Matt Blunt, have publicly supported the authority of Governor Parson to fill a vacancy in the office of Lieutenant Governor.

The Supreme Court will have to determine if the Democratic Party and Cope, a combat veteran from southwest Missouri’s Hartville, have legal standing to bring a case.  Circuit Court Judge Beetem determined they did not. He dismissed the case because they requested a nonbinding opinion from the court and failed to establish that they had a viable stake in the litigation.

Vianello contends that Cope, as a taxpayer, is impacted because the appointment of Kehoe as Lieutenant Governor requires the spending of revenue collected from taxpayers to fund the Office.  He further claims Kehoe as Lieutenant Governor creates an electoral disadvantage for the Democratic Party by enabling Kehoe to run for Lieutenant Governor in 2020 as an incumbent.  He cited 2014 election in which 100% of State Senators and 96.3% of State Representatives won re-election as an example of an advantage of incumbency.

The Supreme Court heard arguments the Lieutenant Governor appointment case Wednesday morning.  They could issue a decision at any time.

The state representing Parson and Kenoe has asked the high bench to confirm the circuit court’s dismissal of the case.  The Democrats and Cope want the Supreme Court to instruct the circuit court to declare that Governor Parson was not authorized to appoint Mike Kehoe — or anyone else — as Lieutenant Governor of the State of Missouri