Hours after Governor Mike Parson appointed Senator Mike Kehoe as lieutenant governor Monday, the Missouri Democratic Party filed a lawsuit, contending that the appointment was not within the governor’s authority.
There's a decades-long, intriguing history to this legal debate.
On the winter morning of Wednesday, January 8, 1969, a 49-year-old attorney walked into the Capitol building in Jefferson City with the intention of starting a new job. William Morris, a WWII veteran from the Kansas City area, had been appointed lieutenant governor by then-Governor Warren Hearnes one week earlier. Morris prepared to take his place presiding over the Missouri Senate on the opening day of the legislative session.
“But instead, there was a 'smoldering fight' over the Senate’s presiding officer,” said Renee Glass, a researcher with the Springfield-Greene County Library District.
She’s scouring over an old, Associated Press article printed in The Daily Capital News, a Jefferson City newspaper at the time.
According to that article, the Senate President Pro Tem, Earl Blackwell, had “threatened to throw Morris
out if he entered the Senate chamber on the grounds he was illegally appointed.”
“And it was averted at the last minute, basically, when [Morris] backed off and left,” Glass said.
Blackwell believed the governor was “barred by law from filling the vacancy,” according to the article. But Morris and the governor disagreed; they felt the Constitution gave the governor the power to appoint a lieutenant governor.
Fast-forward nearly half a century, and Missouri finds itself in the exact same debate.
There are two key differences between Morris’ appointment and Kehoe’s.
“So, the November 5, 1968 election for Lieutenant Governor, the person who won that was a W.S. ‘Bill’ Morris,” said John Dougan, the Missouri State Archivist in Jefferson City.
That means Morris was elected to hold that position; Kehoe was not.
The second difference is timing: Morris was appointed 12 days before his formal inauguration because the outgoing lieutenant governor, Thomas Eagleton, vacated the position early to become a U.S. Senator.
Kehoe, conversely, could be in the appointed position for two years.
What the Constitution and Revised Statutes say
First, the Constitution addresses this in Article 4, Section 4:
“The governor shall fill all vacancies in public offices, unless otherwise provided by law, and his appointees shall serve until their successors are duly elected or appointed and qualified.”
Much of the controversy rests on that Constitutional phrase: “unless otherwise provided by law.”
That’s because the law, specifically Missouri’s Revised Statutes 105.030, says the governor is to fill any vacancy in elected state or county office—other than the office of lieutenant governor, which lawmakers identified by name, and a handful of others:
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…”
So the dividing question has become: does this law go so far as to say the governor cannot appoint a lieutenant governor?
“Yes. I mean, I think that’s exactly what it says,” said former Missouri Supreme Court Chief Justice Michael Wolff. He believes Missouri’s governor has no power under the state constitution or state statutes to fill a vacancy in the office of lieutenant governor.
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[Above data from Missouri's Official Manuals; Chart organized by The Missouri Bar]
Lawmakers gave the governor authority to fill vacancies in all other statewide offices – like state auditor (R.S. MO 29.280), attorney general (R.S. MO 105.050), and treasurer (R.S. MO 30.070)—except for the office of lieutenant governor.
According to the state’s Official Manuals, or so-called “Blue Book” of state records, the vast majority of times the position has been vacated, it has remained open until the next election.
And, Wolff said, the Constitution, in Article 4, Section 11(a) provides for an order of succession—and specifically mentions what to do “if there be no lieutenant governor.”
“So there’s always going to be somebody assuming the office of governor, whether there is or is not a lieutenant governor,” Wolff said.
When asked why the lieutenant governor appears to be singled out among statewide officeholders in the law, Wolff said his opinion is that the office traditionally didn’t have many duties.
The lieutenant governor formally presides over the Senate and casts a tie-breaking vote when needed.
Wolff said he believes those duties, and the office’s relatively new responsibilities of advocating for veterans and seniors, could be assigned elsewhere in the executive branch.
Parson looks to bipartisan experts before appointing
On Tuesday, May 29 of this year, then-lieutenant governor Mike Parson was on his farm in southwest Missouri when he got a phone call that altered his life’s trajectory: the governor, Eric Greitens, was planning to resign three days later, meaning Parson would soon take the reins.
Parson returned to the Capitol that evening. There, with composure and optimism, he told a swarm of reporters that the state of Missouri, beleaguered as it was from the political scandals of the Greitens administration, was going to be just fine.
Parson was sworn in on June 1.
When appointing Kehoe, Parson said he had consulted two respected legal experts on the matter: one Democrat and one Republican.
Those attorneys were Joe Bednar, who was chief counsel for Governors Carnahan and Wilson, and Lowell Pearson, who was the top attorney for Governor Matt Blunt.
Pearson said the Constitution is clear in saying there “shall be a lieutenant governor.” (Article 4, Section 10)
“So I interpret that to express the intent of the writers of the Constitution that there should be a person occupying the office,” Pearson said.
Again, another section of the Constitution gives the governor authority to fill all vacancies, “unless otherwise provided by law." Pearson does not feel that the law about filling vacancies, R.S. MO 105.030, prohibits the governor from making such an appointment.
“And where we have such a clear, Constitutional statement of authority, in my opinion, the legislature would have to be much more explicit to remove that than it has done,” Pearson said.
It would be a grave act, supporters of Kehoe’s appointment feel, to remove a Constitutional power intended for a governor.
Potential challenges if this is unresolved
Attorney Jim Layton, who was Missouri’s solicitor general for many years, doesn’t think the law is clear either way.
And that could lead to serious problems if this is not resolved, he said.
“So let’s suppose that the state Senate ties, 17-17, and Lieutenant Governor Kehoe breaks the tie. A bill passes. The governor signs the bill—and then someone comes in and says, ‘Sorry, folks, he wasn’t the lieutenant governor. That bill was not adopted, and I’m not bound by that law,’” Layton said.
A similar legal challenge could be made if Kehoe needed to suddenly assume the office of governor.
And, Layton said, there’s a reason why a lieutenant governor would ideally be elected by the entire state.
“That is, you and I vote for them. We decide who that person is going to be. And then that person, as our representative, breaks the tie in the Senate,” Layton said.
There was legislation proposed this year that would have clarified the governor’s authority to appoint a lieutenant governor—but it was squashed in the Missouri House.
Other than Morris’ appointment on January 1, 1969, the only other known time a lieutenant governor was appointed was in 2000, when Joe Maxwell was tapped to fill the office after Governor Mel Carnahan’s sudden death.
But Maxwell, like William Morris before him, had also been elected to that office and was stepping into the position just a few weeks before his inauguration—that’s according to the Missouri State Archives.
And that means, for the first time in history, Missouri’s second-in-line to the governor is now someone selected for that spot by one person instead of by the entire state.
