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

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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 &ULVHVGHPDQGOHDGHUVKLS7KHWLPHWRDGGUHVVDQRUGHUO\VXFFHVVLRQRIH[HFXWLYHEUDQFKSRZHU LVEHIRUHDFULVLVRFFXUV7KLVGHFDGHRIIHUVVWDWHVH[DPSOHVRITXHVWLRQVDQGOHJDOFKDOOHQJHV ZKLFK PD\ DULVH LI VWDWH FRQVWLWXWLRQDO ODQJXDJH RU VWDWXWH RQ H[HFXWLYH EUDQFK VXFFHVVLRQ LV LQFRPSOHWHXQFOHDURULQFRQÁLFWZLWKRWKHUVWDWHVWDWXWHV7KHJRYHUQRU·VRIÀFHPD\EHYDFDWHG EHIRUHWKHRIÀFLDOFRPSOHWLRQRIDWHUPGXHWRGHDWKUHVLJQDWLRQLQFDSDFLWDWLRQLPSHDFKPHQW RUUHFDOO6WDWHODZVKRXOGGHÀQHDFOHDUDQGVXIÀFLHQWO\GHHSOLQHRIJXEHUQDWRULDOVXFFHVVLRQ 6WDWHOHDGHUVVKRXOGFRQVLGHUHVWDEOLVKLQJDVSHFLÀFSURFHVVWRGHFODUHDJRYHUQRULQFDSDFLWDWHG HLWKHUWHPSRUDULO\RUSHUPDQHQWO\6WDWHVPD\DOVRUHYLHZWRHQVXUHVWDWXWHVXUURXQGLQJLPSHDFK- PHQWDQGUHFDOOSURYLVLRQVDUHQRWLQFRQÁLFWZLWK&RQVWLWXWLRQDODQGRWKHUVWDWXWRU\ODQJXDJHRQ VXFFHVVLRQ 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 suc- cession. 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<RUNWKH ers while retaining their senate seat and all powers state has the senate president pro tem retain his sen- of the senate presidency. Both men gaveled in each ate seat and leadership power while also assuming senate session and often led session voting while the role and power of acting lieutenant governor. simultaneously acting as governor. State executive Senate President Pro Tem Joe Scarnati, a Republi- VXFFHVVLRQODZVKRXOGEHVSHFLÀFDVWRWKHUROHDQG FDQLVQRZÀUVWLQOLQHRIVXFFHVVLRQWRWKHVLWWLQJ SRZHUVRIDQRIÀFLDOZKRKDVVXFFHHGHG Democratic governor bringing to light another con- Other states have the senate president third in line sideration in succession planning, the potential for RIVXFFHVVLRQ,QWKDWUROHWKHRIÀFLDOPD\EHFRPH cross party succession. acting lieutenant governor when a vacancy occurs Gubernatorial resignation may occur for a vari- LQWKDWRIÀFH7KHVHVLWXDWLRQVPD\FUHDWHDGGLWLRQDO ety of personal or professional reasons and may questions of clarity. In March 2008, New York Lt. occur with or without notice. As a result of the 2008 Gov. David Paterson succeeded to governor after presidential election, several governors announced former Gov. Eliot Spitzer resigned. From March the intent to resign their seats to take positions in 2008 to January 2009, New York had four different Washington, D.C. One issue states may address is lieutenant or acting lieutenant governors. Paterson the availability of transition planning funds for the succeeded to governor, the next senate president successor. The unusual issue of a postponed succes- resigned his senate seat, the following senate presi- sion also arose in 2009. New Mexico Gov. Bill Rich- dent was voted out when the majority changed in the ardson withdrew his name from consideration for a November election, and a new senate president was Cabinet post after gubernatorial transition planning seated in January. Some note this method of succes- had begun. sion has led to instability in the second position of gubernatorial succession. Incapacitation /LNHZLVHLQ1HZ<RUNZKHQWKHRIÀFHRIOLHXWHQ- A governor may become permanently or temporarily ant governor is vacant, the senate president pro tem LQFDSDFLWDWHGWKURXJKORFDWLRQSK\VLFDODIÁLFWLRQRU retains his or her senate seat, the senate presidency, the inability to effectively function. and also assumes all duties and powers of the lieuten- ant governor. Since a lieutenant governor may cast Location Incapacitation tie-breaking votes in the senate in New York, there In 1979 in the Petition of the Commission on the is a question of whether or not a senate president pro Governorship of California (%URZQYV&XUE), the tem acting as lieutenant governor could potentially state supreme court ruled the lieutenant governor be- cast two votes on a question—one as a senator and comes acting governor each time the governor is out a second as lieutenant governor in the event of a tie. of state, a position other states also hold. One basis of /HJDOH[SHUWVGLIIHU6RPHVD\LWLVFOHDURQHRIÀFLDO the ruling was that a leader must ideally be physically may only vote once. Others argue the lieutenant gov- present to address issues of immediate concern and ernor votes only on procedural matters in the event emergency. These may be natural disaster, mass vio- of a tie, not on legislation, so the acting lieutenant lence, or other crises. Other states, though, adopted the governor could vote on procedural ties. Since the opinion that modern communication devices make YRWLQJLVVXHKDV\HWWRRFFXUQRGHÀQLWLYHSUHFHGHQW location irrelevant in regard to governance. But new has been set. However, states may learn from this issues have arisen since 2003. The Iraq war has pro- circumstance in determining the order of the line of vided examples of governors who have yielded au- gubernatorial succession and in determining the best thority while in dark communication zones or while ZD\VWRÀOOUHVXOWLQJYDFDQFLHVDQGSRZHUWUDQVIHUV in the war zone generally. In determining whether 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
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