GOVERNORS Gubernatorial Incapacity and Succession Provisions By Brian J. Gaines and Brian D. Roberts Very rarely are living governors replaced because of incapacity. The infrequency of such events is no excuse for ambiguous resolution mechanisms; yet, several states have gaps in their legal provisions. Clarity in the grounds and procedures for replacing a governor who can no longer perform the duties of office is difficult to achieve, but the alternative is to flirt with avertable crises. Below we highlight which states seem remiss, and we catalogue some pertinent issues, without endorsing any one model as the optimal approach to this knotty question. In September 2003, Frank O’Bannon, the Demo- event be a death, resignation under happy circum- cratic governor of Indiana, suffered a massive stroke. stance (e.g., following election or appointment to Early news stories reported that state officials had another office), forced resignation (e.g., following decided not to invoke the process for transferring conviction of a crime or revelation of a scandal), or authority to Lt. Gov. Joe Kernan (also a Democrat) even impeachment, removal or recall. It is quite rare until it became clear if there was any hope of for a living governor to be too severely incapacitated O’Bannon recovering. The relevant language from to govern, but Indiana’s experience is a reminder that Indiana’s constitution is found in Article 5, sections rare events sometimes happen. Surprisingly, a num- 10(a) and (d): ber of states have lacunae in their legal frameworks (a) …In case the Governor is unable to discharge the for dealing with such gubernatorial incapacity, not- powers and duties of his office, the Lieutenant withstanding the fact that controversy and near- Governor shall discharge the powers and duties misses with constitutional crisis have arisen at the of the office as Acting Governor. federal level and in several states. Here, we briefly review provisions for gubernatorial succession due (d)Whenever the President pro tempore of the Senate to incapacity across all 50 states, in an effort to de- and the Speaker of the House of Representatives termine which are well-equipped to deal with such file with the Supreme Court a written statement events, and which are vulnerable to crisis. suggesting that the Governor is unable to discharge Recognition of the frailty of officials is longstand- the powers and duties of his office, the Supreme ing: the federal constitution juxtaposes “inability to Court shall meet within forty-eight hours to de- discharge the Powers and Duties of [the presidency]” cide the question and such decision shall be final. with death, resignation and removal when broach- A day later, having consulted with the doctors treat- ing the line of succession in Article II, Section 1. th ing O’Bannon, the Republican senate president pro However, nearly two centuries passed before the 25 tempore and Democratic house speaker wrote to the Amendment filled out procedures for establishing chief justice of the Indiana Supreme Court, and the “inability,” the only inherently subjective condition court quickly ruled that Kernan should serve as act- of these four. The solution—also popular with ing governor, although O’Bannon would remain in states—was procedural rather than substantive. In office, entitled to salary and benefits. Five days later, lieu of any enumeration of conditions that constitute O’Bannon passed away, and Kernan automatically disability, most states (and the United States) specify succeeded him. procedures for replacement in the event of disabil- These unusual events, though traumatic for ity, thereby delegating discretion to individual deci- O’Bannon’s family, did not constitute a political cri- sion-makers on a case-by-case basis. There are po- sis. The transfer of authority was dignified, without tential hazards in such discretion, particularly where any aura of legal ambiguity or partisan controversy. natural partisan conflict can find its way into a de- Gubernatorial successions arise in many ways, and termination of disability. Far more hazardous, though, Indiana’s crisis was soon over-shadowed by the scan- is an absence of legal procedures for determining dal-induced resignations of the governors of Con- disability. necticut and New Jersey. Every state except Hawaii Table A lays out some key aspects of how the 50 has dealt with midterm gubernatorial vacancy, and states deal with incapacity in the governor. The first succession at the apex of the executive branch is typi- column lists constitutional provisions pertaining spe- cally a smooth process, whether the precipitating cifically to disability, and reveals that literally every 208 The Book of the States 2005 GOVERNORS state has at least some such language in its constitu- Edgar’s proxy in budget negotiations, though, hap- tion. The word counts give a fairly crude indication pily, the governor recovered quickly enough to sign of the level of detail in each state’s provisions: some- the final spending bill from his hospital bed. Had times a large number of words is deceptive insofar Kustra resigned before chest pains seized Edgar, ac- as the provisions are wordy, but not very detailed, or cording to Article V, Section 6(a), that vacancy in the section in question actually includes discussion the lieutenant governorship would have placed of some aspect of succession other than disability Democratic Attorney General Roland Burris first in (where possible, we provide a second disability-spe- the line of succession. In that event, a less speedy cific count in such cases). By contrast, low word recovery by the governor might have precipitated a counts reliably signal lack of specificity. For in- messy tussle for control. stance, the 53 words in Article III, Section 12 of the A catalogue of all crises and near misses for all Alaska Constitution read simply: states would be very long indeed. At the dramatic Whenever for a period of six months, a governor end of the spectrum, in 1900, Kentucky saw William has been continuously absent from office or has Goebel, the Democratic candidate for governor in a been unable to discharge the duties of his office disputed election, shot, declared elected by the leg- by reason of mental or physical disability, the of- islature, and then sworn in while hospitalized, only fice shall be deemed vacant. The procedure for to pass away days later. In a more recent and more determining absence and disability shall be pre- mundane case, Massachusetts Gov. Jane Swift—who scribed by law. had succeeded to the governorship when Paul Cellucci resigned to become ambassador to Canada— The second column of the table lists statutory pro- came under scrutiny while bedridden, awaiting the visions that elaborate on the constitutional language arrival of twins. Swift, a Republican, had to fend off about gubernatorial disability, and Alaska’s cell is allegations from Democrats serving on the empty. The state Legislative Affairs Agency explains: Governor’s Council that her physical absence from To avoid a tedious recitation of procedures simi- council meetings rendered her incapable of perform- lar to those found in the 25th Amendment to the ing her constitutional duties.4 U.S. Constitution, the drafters of the constitution Given the many borderline or contested disability assigned to the legislature responsibility for speci- cases that did not result in succession, and many more fying how the office of governor could be declared near misses, determination of whether a chief execu- vacant. The legislature has not yet done so, which tive is genuinely unable to perform duties is the crux may be unfortunate if the task became compli- of the matter, and the key column in Table A is the cated by the circumstances of a particular situa- middle one, which identifies what actors take part in tion warranting the use of this section.1 such determination. At a glance, one notes much “Unfortunate” seems an understatement, and variety. Indeed, this brief schematic cannot do jus- Alaska is not alone; as Table A shows, by our count, tice to the diversity of procedures found across the about a third of the states similarly suffer from hav- nation. A few aspects seem particularly important. ing “unclear” legal provisions on determination of How Many Actors (and Which ones) gubernatorial disability.2 Illinois is a surprising mem- ber of this club, since it has already weathered one are Involved? political crisis stemming from the prolonged ill- In most states, governors may designate them- health of a governor, and has dodged a bullet in re- selves unfit to govern (presumably in anticipation of cent memory. Gov. Henry Horner suffered a heart an expected medical crisis, or in the midst of a rap- attack in November 1938, but clung to office through idly worsening condition). When others must make an extended convalescence rather than allow Lt. Gov. the declaration, one of the main protections against John Stelle, a fellow Democrat but also a hated ri- controversy is involvement of many actors, often val, to take power. Unable to work for more than a representing all three branches of state government. few hours per day, Horner relied on a regency of Supreme courts are frequently included, more often unelected advisors, even as his foes launched an ar- as arbiters (as in Indiana) than as precipitators. South ray of challenges.3 In 1994, the possibility of a sud- Dakota’s constitution, though, provides its supreme den gubernatorial transition again loomed. Just days court with “original