Son of Illegal Lieutenant Governor

Or maybe, Illegal Lieutenant Governor Rides Again. Or how about, Return of The Illegal Lieutenant Governor

You have to remember some old movies to understand those titles. Here’s an update:

Heard from Joe Maxwell, who was written up in our President’s Day ruminations blog about whether he served 55 days illegally as Lieutenant Governor. Maxwell, now a private practice lawyer in Mexico, assures us he was okay. He remembers that there were some questions raised by Republicans back in 2000 when Governor Wilson appointed him Lite Governor (as some call the job). But nobody took the issue to court. Not much could have been done in the courts in those 55 days anyway.

Maxwell recalls that he hired ex-Representative Jason Klum, a young lawyer, to help him work through court decisions on appointments. He remembers that they put out a statement that seemed to end the discussion. “We believe we served under the authority of the Constitution,” he told us, “and that seemed to resolve the matter then.”

“Or maybe I bluffed my way through,” he concluded.

He thinks the materials gathered that either justified the appointment or bluffed his way through are in the state archives. So we are now going to walk away from this discussion and leave it to a future historian, student of government, or person with the time to ponder such machinations of the past to carry forth the discussion on their own time and their own blog page.

If you made it through all of the previous piece you will have noticed that the last line was crossed out. It concerned Hancock Lee Jackson, who served as Lieutenant Governor before Trusten Polk was elected by the legislature to the United States Senate. A reading of the 1820 Missouri Constitution (egads!!! Now we’re reading the original state constitution!) shows that the Lieutenant Governor’s role was different in those days and while Jackson assumed the work of the missing Governor after Trusten Polk left, he did not actually vacate the lieutenant governorship. His main duty was to call a special election to pick Polk’s successor, at which point he was fully the number two man in state government again.

The first time this kind of thing happened was when Abraham J. Williams, a one-legged shoemaker from Boone County was elevated from Senate President Pro-tem to the Governorship upon the death (pleurisy) of Frederick Bates in 1825. There was no lieutenant governor at that time because Benjamin Reeves had resigned to help make the first survey of the Santa Fe Trail. Williams assumed the duties of governor, called the election to pick a replacement for Bates, and then resumed his role as a state senator.

It’s possible there have been other appointed lieutenant governors in Missouri’s 189-year state history but we’ve enjoyed about all this discussion we can stand and are moving on now.

The illegal Lieutenant Governor

You know it’s a slow news day when reporters resort to reading the Missouri Constitution.

Monday, being President’s day and therefore a day of much idleness among normal news sources, was one of those days. During the holiday ruminations we recalled our discussion last week with Rep. Jason Smith about his proposal to require special elections to be held whenever there is a vacancy in statewide elected offices. And suddenly this thought struck us:

One of our recent lieutenant governors might have served illegally for almost two months.

Uh-oh.

Smith points to this state law:

105.030. 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…..

The key phrase is “OTHER THAN IN THE OFFICES OF LIEUTENANT GOVERNOR, state senator or representative….”

A layman’s reading of the law leaves a pretty clear conclusion that the appointment of a lieutenant governor to fill a vacancy in the position is not allowed. But less than a decade ago, it happened.

Here are the circumstances. Roger Wilson moved from lieutenant governor to governor when Mel Carnahan was killed in a plane crash three weeks before the November, 2000 election. He remembers that a push developed to name Kansas City Mayor Emanuel Cleaver to the lieutenant governorship as a symbolic gesture. But Wilson said he didn’t want to play politics with the office while the state was still in mourning for Carnahan. He waited until after the November elections when State Senator Joe Maxwell of Mexico was elected lieutenant governor for a term to begin in January and appointed Maxwell to fill the vacancy. Maxwell served about two months before he was sworn in for the full term to which he had been elected.

“That is amazing,” former Governor Roger Wilson told us this morning when we read him the statute, “That means my counsel,the entire legislature, legislative research—everybody in state government missed it.”

He went on, “I’ll guarantee you nobody tried to pull a fast one, That’s unbelievable.”

“There was not a whimper,” said Wilson, referring to the apparently improper appointment. “But I think we did the right thing, waiting to see who won (in November).”

As we continued to mull over this situation, former Capitol reporter Marc Powers (he used to report for the Cape Giradeau Southeast Missouri until the newspaper decided to just let the Associated Press be its Capitol source) joined the conversation for a spirited debate the we eventually agreed ended in a draw although it was he who made a final concession that let both of us get on with our lives. The ultimate argument on this side stemmed from Article Four, Section 11(e) of the Missouri Constitution. It establishes the order of succession in case the office of lieutenant governor is vacant. :

If the governor-elect dies before taking office, the lieutenant governor-elect shall take the term of the governor-elect. On the death, conviction or impeachment, or resignation of the governor, the lieutenant governor shall become governor for the remainder of the term. If there be no lieutenant governor the president pro tempore of the senate, the speaker of the house, the secretary of state, the state auditor, the state treasurer or the attorney general in succession shall become governor. On the failure to qualify, absence from the state or other disability of the governor, the powers, duties and emoluments of the governor shall devolve upon the lieutenant governor for the remainder of the term or until the disability is removed. If there be no lieutenant governor, or for any of said causes the lieutenant governor is incapable of acting, the president pro tempore of the senate, the speaker of the house, the secretary of state, the state auditor, the state treasurer, and the attorney general in succession shall act as governor until the disability is removed.

Because state law says the office shall not be filled by appointment and because the Missouri Constitution establishes a line of succession when there is a vacancy in the lieutenant governor position, the layman might conclude, therefore, that Wilson should have left the office vacant.

And all of this raises the issue of whether Governor Wilson violated his oath of office to uphold the Constitution of the State of Missouri when he appointed Maxwell as lieutenant governor.

Well, as some long forgotten observer observed so long ago that he’s been forgotten: It seemed like a good idea at the time.

Having now provided some historical perspective as well as exhibiting the possible dangers of a reading of the law by a layman who suggests the wording of the Constitution and the statute is clear, we shall now leave further discussion to those who have academic credentials in the field of law.

And you, dear reader, have gained some insight on what goes through a reporter’s mind on a slow news day.

By the way:

Wilson wound up serving the second-shortest term of any Missouri Governor*, filling the two months or so between Carnahan’s death and Bob Holden’s inauguration, and now is the head of Missouri Employers Mutual Insurance Company in Columbia. Maxwell decided not to seek a second term as lieutenant governor and went home to Mexico where he practices law. We called him during yesterday’s deliberations but he was busy practicing. When he calls, we might be able to squeeze another blog out of this topic.

*Wilson served 84 days as Governor, October 17, 2000 to January 8, 2001. Trusten Polk served 54 days, January 5, 1857-February 27, 1857 before the legislature elected him to the United States Senate (the legislature picked our Senators in those days, not the people). Maxwell served as an appointed Lieutenant Governor from November 15, 2000 until he was sworn in for a full four-year term January 8, 2001—55 days. Only Hancock Lee Jackson, who succeeded Polk, appears to have served a shorter term as Lieutenant Governor—the same 54 days Polk was Governor.