Executive Branch Successors and the Line of Succession by Julia Nienaber Hurst

LIEUTENANT GOVERNORS Executive Branch Successors and the Line of Succession By Julia Nienaber Hurst

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Executive Branch Succession This decade provides many examples of needs states into executive roles and under what circumstances, have to revisit their succession laws and continuity ODZVKRXOGVSHFLI\ZKHWKHUWKHVXFFHHGLQJRIÀFLDO of government planning. When executive branch retains any part or power of their previous position. succession is not thoroughly addressed in law, prob- lems can ensue. The issues may include predomi- Line of Succession nant control of two branches by one person, lack of While not every state addresses gubernatorial suc- checks and balances, a question of one state sena- cession the same way, there are some tenets which tor with two votes in the senate, that the governor arguably should be consistent across states and other LVQRWDVWDWHZLGHHOHFWHGRIÀFLDORUUHODWHGOHJDO tenets which must be clearly addressed, even if not challenges. uniformly. Each state should establish, before it is *HQHUDOO\HYHU\VWDWHVKRXOGDGGUHVVZKLFKRIÀ- QHHGHGDFOHDUOLQHRIVXFFHVVLRQRIVXIÀFLHQWGHSWK cials constitute the line of gubernatorial succession, 7KLV\HDU1HZ-HUVH\YRWHUVZLOOHOHFWWKHVWDWH·VÀUVW in what order they form the line, how deep the line is, lieutenant governor, and when they do, 43 states will and under what circumstances a person succeeds, KDYHDOLHXWHQDQWJRYHUQRUÀUVWLQOLQHRIJXEHUQDWR- with specificity. Gubernatorial succession begins rial succession. Arizona, Oregon and Wyoming des- ZKHQWKHRIÀFHLVYDFDWHGSULRUWRFRPSOHWLRQRID LJQDWHWKH6HFUHWDU\RI6WDWHÀUVWLQOLQHZKLOHIRXU SHUVRQ·VRIÀFLDOWHUP7KHRIÀFHPD\EHYDFDWHGDVD VWDWHVUHO\RQWKH6HQDWH3UHVLGHQWDVÀUVWLQOLQH result of death, resignation, incapacitation, impeach- These include Maine, New Hampshire, Tennessee and ment or recall. A leader may be incapacitated due to West Virginia. location, physical ailment, unconscious state (anes- In the states without a lieutenant governor, several thetized or in a coma), or the inability to effectively legislatures have debated the merits of creating the function. State law should also specify if incapaci- RIÀFH7KHJRYHUQRUDQGOLHXWHQDQWJRYHUQRUVXF- tation may be temporary, how incapacitation is de- cessor line most closely model the federal line of termined, and when and how a succession due to executive succession of president and vice president. incapacitation is enacted. According to one Arizona newspaper, in today’s Once a line of succession has activated, state law mobile society, voters who have recently moved should also be clear as to whether successors become may not realize they are voting for a gubernatorial ´DFWLQJµRIÀFLDOVRUZKHWKHUWKH\DVVXPHWKHWLWOH successor if that successor does not hold the title of DQGRIÀFH/DZPDNHUVDUHZHOODGYLVHGWRFDUHIXOO\ lieutenant governor. Others point out the succession FRQVLGHUZKHWKHUUHVXOWLQJYDFDQFLHVVKRXOGEHÀOOHG of a senate president may allow a person who was DQGLIVRKRZ$QGGHSHQGLQJRQZKLFKRIÀFLDOVVWHS QRWHOHFWHGVWDWHZLGHWRKROGWKHRIÀFHRIJRYHUQRU

214 The Book of the States 2009 LIEUTENANT GOVERNORS

DQGWKHSHUVRQPD\HQGXSZLWKVLJQLÀFDQWSRZHUV The 2001 attacks on the United States showed the over two branches of state government, such as the need for states to plan gubernatorial succession and case in New Jersey this decade. continuity of government for a deeper line of succession. Some states convened commissions to study Death or Resignation and report on succession and government continu- In November 2004, New Jersey Gov. Jim McGreevey ity. In 2004, both Indiana and Virginia voters passed resigned. It was the second time in less than four constitutional amendments clarifying and deepening \HDUVD1HZ-HUVH\JRYHUQRUKDGOHIWRIÀFHHDUO\ lines of gubernatorial succession, some as deep as 6WDWH/HJLVODWXUHV magazine noted that both result- RIÀFLDOV ing Acting Governors Richard Codey and Donald In November 2008, the Pennsylvania lieutenant DiFrancesco, became governor assuming those pow- JRYHUQRUGLHGZKLOHLQRIÀFH/LNH1HZ

The Council of State Governments 215 LIEUTENANT GOVERNORS location can “incapacitate” a governor, state leaders her duties due to temporary incapacitation. In 2006, should consider physical presence, availability of im- Tennessee Gov. Phil Bredesen was seriously ill for mediate and reliable communication, and the safety three weeks from a tick-borne illness doctors were of the governor wherever he or she may be. XQDEOHWRVSHFLÀFDOO\GLDJQRVH7KHVWDWHOHDUQHGLW lacked such provision through the incident. Physical Incapacitation Physical incapacitation of a governor may range Recall or Impeachment from sedation or questionable lucidity to anesthe- Recall and impeachment are processes citizens or tized unconsciousness or coma. In 2006, Kentucky legislators may follow to forcibly remove a gover- Gov. Ernie Fletcher was hospitalized. News reports QRUIURPRIÀFHEHIRUHKLVRUKHUWHUPKDVRIÀFLDOO\ indicated he would continue to govern with assis- ended. Most states have provisions in law for one tance from designees of his Cabinet and leadership or both processes. Typically a recall involves a peti- team, none of which was the lieutenant governor. tion process which results in a vote of the people to Some public debate ensued. In subsequent hospital- UHPRYHDSHUVRQIURPRIÀFH$QLPSHDFKPHQWLV izations, the governor prepared formal transfers of a vote of the legislature typically to have hearings power to the lieutenant governor, which may or may DQGDYRWHRQWKHUHPRYDORIDQRIÀFLDO$UHFDOOWKLV not have been activated based on the seriousness of decade showed that a state’s line of gubernatorial the diagnosis and treatment. succession provisions and the state’s statute govern- Former Indiana Gov. Frank O’ Bannon unexpect- LQJDUHFDOOFDQEHLQFRQÁLFW edly suffered a stroke Sept. 8, 2003, and reportedly ,QDSHWLWLRQLQ&DOLIRUQLDZDVFHUWLÀHGWR remained unconscious. Indiana law spells out how hold a recall election on Gov. Gray Davis. A question gubernatorial incapacitation is determined. The was raised whether a recall would elevate the lieuten- KRXVHVSHDNHUDQGVHQDWHSUHVLGHQWPXVWÀOHDOHWWHU ant governor to the vacant position or whether voters with the Supreme Court suggesting the governor is would get to choose a new governor from among a incapacitated. The Supreme Court must meet within slate. In)UDQNHOYV6KHOOH\, the California Supreme 48 hours to rule on the question. On Sept. 10, 2003, Court ruled since the state’s recall statute indicated VXFKDOHWWHUZDVÀOHGDQGWKHFRXUWGHFODUHGWKHJRY- voters should elect a successor, if appropriate, simul- ernor incapacitated making the lieutenant governor taneous to the recall vote, the Constitutional provi- acting governor. The governor died Sept. 13, 2003. sions regarding a lieutenant governor succeeding did Senate President Pro Tem Bob Garton was quoted QRWDSSO\EHFDXVHWKHRIÀFHZRXOGQHYHUEHYDFDQW saying, “If anyone has ever questioned the impor- The simultaneous recall and gubernatorial replace- WDQFHRIWKHRIÀFHRIOLHXWHQDQWJRYHUQRUWKDWTXHV- ment election took place Oct. 7, 2003. In reviewing tion has now been answered.” succession law, state leaders may review recall and impeachment statutes for congruity with gubernato- Functional Incapacitation rial succession lines and planning. In December 2008, Illinois Gov. Rod Blagojevich was arrested on federal corruption charges involving the Acting Acting Governor RIÀFHRIJRYHUQRU8QOLNH,QGLDQD,OOLQRLVODFNHGD VSHFLÀFVWDWXWRU\SURFHVVIRUGHFODULQJDJRYHUQRU State law should be clear about whether, and under incapacitated. In that vacuum, the attorney general what circumstances, a gubernatorial successor is filed an incapacitation motion with the Supreme stepping into the governor role permanently or tem- Court which would have granted temporary incapac- porarily. In Utah, language which indicated a lieuten- itation pending the federal trial. However, the court ant governor would be “acting as governor” opened rejected the effort. Nearly one month to the day after the question of whether that meant the person was his arrest, the legislature voted to impeach him. Some “Acting Governor” or was “Governor” acting in that papers opined the state should consider adopting a role. In 2003, former Utah Gov. Michael Leavitt clear, statutory process for declaring incapacitation. announced he would join the president’s Cabinet. Preparations began for the succession of Lt. Gov. Temporary Incapacitation Olene Walker. At the governor’s request, the Utah At least one Tennessee body made a similar decla- Attorney General released opinion 03-001 Aug. 18, ration in 2008. In January 2008, a Tennessee state 2003, regarding this question. It found the state’s task force recommended the state adopt a process by Constitutional language that upon a vacancy in the which a governor could temporarily transfer his or RIÀFHRIJRYHUQRUWKHSRZHUVDQGGXWLHVRIWKH*RY-

216 The Book of the States 2009 LIEUTENANT GOVERNORS ernor “shall devolve” to the Lieutenant Governor indicated permanent succession. The Attorney Gen- eral noted the intent of the constitutional language was to model Presidential succession. Filling Vacancies 6RPHVWDWHVKDYHQRSURYLVLRQVIRUÀOOLQJDYDFDQF\ LQWKHRIÀFHRIOLHXWHQDQWJRYHUQRU$VQRWHGDERYH this can result in lines of succession which yield top RIÀFLDOVRIRSSRVLWHSDUWLHVRQHRIÀFLDOZKRDUJXDEO\ KDVWZRYRWHVLQWKHOHJLVODWXUHRURQHRIÀFLDOZKR PDLQWDLQVVLJQLÀFDQWSRZHUVDFURVVWZREUDQFKHV of government. New Mexico is among the states to address that issue this decade. The state passed a law LQZKLFKDOORZVDJRYHUQRUWRÀOODYDFDQF\LQ WKHRIÀFHRIOLHXWHQDQWJRYHUQRU

About the Author Julia Nienaber Hurst is executive director of the National Lieutenant Governors Association (ZZZQOJDXV). Hurst’s nearly 20 years of state government experience include WLPHDVFKLHIRSHUDWLQJRIÀFHURI7KH&RXQFLORI6WDWH*RY- ernments, four sessions as a legislative chief of staff, and time as a multistate lobbyist.

The Council of State Governments 217