Some argue that the Missouri governor does not have the authority to fill a vacancy in the office of lieutenant governor. Both of us served as chief counsel to governors of different political parties, and our legal opinion is that under the Missouri Constitution and statutes, it is plain and simple: The governor has the constitutional authority, and mandate, to fill the vacancy.
To start, it is important not to overlook the obvious. Our state constitution says, “There shall be a lieutenant governor who shall have the same qualifications as the governor.” This language does more than just create an office; it mandates that there shall be a person occupying it. Thus, the constitutional presumption is that there shall be a person serving as lieutenant governor.
Second, the constitution gives the governor broad power to appoint and commission officers: “The governor shall fill all vacancies in public offices unless otherwise provided by law,” and “The governor shall commission all officers unless otherwise provided by law.” These parallel powers to appoint and commission officers are unambiguous.
The analysis by those who say the governor may not fill the vacancy goes off course when discussing Section 105.030 of the Missouri Revised Statutes. That section provides that when a vacancy occurs in certain offices — other than in the offices of lieutenant governor, state senator or representative and certain county offices — the vacancy shall be filled by appointment by the governor. It goes on to provide for the length of time the appointee will serve before an election would be held for the office. This language simply proscribes the length of time this appointee would serve, and when an election would be held for his or her successor.
More importantly, while the law otherwise is specific as to how a vacancy in these offices are filled, it does not otherwise provide for the filling of a vacancy in the office of lieutenant governor, in spite of multiple opportunities over the last three decades for the General Assembly to pass just such a law.
Moreover, past governors agree with our analysis. Former Gov. Roger Wilson appointed Lt. Gov. Joe Maxwell. Former Gov. Warren Hearnes appointed Lt. Gov. William Morris. Gov. Jay Nixon vetoed a 2013 bill that would have delayed filling of the office until the next general election, and publicly asserted his authority to appoint a lieutenant governor should a vacancy occur.
We do not disagree that there are political arguments over what would be the preferred method of filling the vacancy. However, legal analysis should not be clouded by political agendas when there is an existing vacancy in such an important and essential office.
The language of the constitution makes it clear that the office of lieutenant governor is essential. In this context, the legal analysis happens to be consistent with the common good. Filling the vacancy ensures that the duties owed by public officials to the residents of the state they serve shall not be impeded by the transition taking place in the governor’s office, nor thwarted by those with a political agenda.
Leaving the office vacant, and therefore leaving these duties unmet for more than two years, is unwise and unnecessary and in violation of the governor’s constitutional mandate to fill all vacancies not otherwise provided for by law.
In our view, Gov. Mike Parson can and should appoint a lieutenant governor as soon as he identifies the right person.
Joe Bednar, a Democrat, served as chief counsel to Govs. Mel Carnahan and Roger Wilson, and as special counsel to Gov. Bob Holden. He co-authored this with Lowell Pearson, a Republican who served as chief counsel to Gov. Matt Blunt.