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Missouri Democratic Party sues over lieutenant governor appointment

The Missouri Democratic Party has filed a lawsuit challenging the appointment of former state Sen. Mike Kehoe, pictured here on the Senate floor, as lieutenant governor.
File photo I Jason Rosenbaum | St. Louis Public Radio
The Missouri Democratic Party has filed a lawsuit challenging the appointment of former state Sen. Mike Kehoe, pictured here on the Senate floor, as lieutenant governor.

Updated June 19 at 2:50 p.m. with comments from Attorney General Josh Hawley and additional background — The Missouri Democratic Party is challenging Gov. Mike Parson’s appointment of Mike Kehoe as lieutenant governor.

In a lawsuit filed Monday night on behalf of a World War II veteran, attorneys for the party say Parson had no authority to name Kehoe, a former Republican state senator from Jefferson City, to the office. The lieutenant governor is, by law, an advocate for seniors and by tradition an advocate for veterans.

“I fought Nazis in World War II to defend our freedoms, including our freedom to elect our leaders,” said Darrell Cope, the veteran named in the suit, in a statement. “I don’t need Republican politicians picking the state veterans advocate in back room deals. I want an opportunity to vote for my lieutenant governor and as a World War II combat veteran, I’ve earned that right.”

Stephen Webber, the chairman of the state Democratic Party, pointed out that Kehoe played a major role in removing former Gov. Eric Greitens from office, which elevated Parson to power.

“There’s a reasonable concern that there was some sort of deal cut there,” Webber said. “People have lost a lot of faith in government, and they’ve seen just the absolutely complete dumpster fire that Jefferson City is. In that environment, it’s really important that people have complete confidence there wasn’t a shady backroom deal.”

The party wants a state judge to declare that Parson lacked the authority to appoint Kehoe to the office, and to block Kehoe from serving as lieutenant governor unless he is elected.

Parson’s spokeswoman said Tuesday that the governor’s office is reviewing the petition. At a news conference announcing Kehoe’s appointment on Monday, Parson said his office had consulted with legal experts from both parties who “believe the law clearly states the authority of such an appointment currently exists."

A spokeswoman for Attorney General Josh Hawley said Parson did not asked for an official opinion before making an appointment, but “the Attorney General’s Office agrees with the 5 former governors of Missouri who all believe Governor Parson has the authority to make this appointment. We look forward to vigorously defending this appointment in court.”


The legal arguments

Missouri’s Constitution gives the governor the authority to “fill all vacancies in public offices unless otherwise provided by law.” A separate statute says the governor can appoint someone to fill a vacancy that happens for any reason in any elected office “other than in the offices of lieutenant governor, state senator or representative, sheriff, or recorder of deeds in the city of St. Louis ….”

“There isn’t a law that says the governor can’t appoint a lieutenant governor,” said former Missouri solicitor general James Layton, now an attorney at Tueth Keeney. “There is a law that says the governor can fill vacancies except the office of lieutenant governor. It is an untested question as to whether excluding the office of lieutenant governor in the statute is sufficient to remove that position from the governor’s authority whether the Constitution says unless otherwise provided by law.”

The lawsuit points out that state law sets out ways to fill vacant seats in the General Assembly and vacancies in county sheriff offices, “but provides no way to fill a vacancy in the office of lieutenant governor. This omission evidences the General Assembly’s intent that should a vacancy arise in the office of lieutenant governor, the office will remain vacant until the next applicable election.”

But attorneys from both parties disagree.

The statute the Democratic lawsuit cites deals with the timing of an election, rather than removing the authority of the governor to name a lieutenant governor, said Lowell Pearson, a partner at Husch Blackwell in Jefferson City and the former chief counsel to Republican Gov. Matt Blunt.

“In my mind, for the General Assembly to override the constitution, it would have to say something almost as a clear as, ‘the governor may not fill a vacancy in the office of lieutenant governor,’” Pearson said. “In my judgment, we’re not even close to that level of clarity.”

Joe Bednar, the former general counsel to Democratic governors Mel Carnahan and Roger Wilson, agreed with Pearson’s legal reasoning. He pointed out that the Democrats had, until Monday, been the only party to appoint a lieutenant governor.

“It’s politics,” he said of the lawsuit. “The reality is that the party should be focused on how we lawfully and legally fill vacancies so that citizens can be served. If the lieutenant governor is there to serve veterans, why would we want the office vacant?”

Wilson, who took office after Carnahan died in a place crash, appointed Joe Maxwell lieutenant governor, a move no one challenged. And in January 1969, Warren Hearnes named William Morris to the post after Tom Eagleton was sworn into the U.S. Senate. However, both of those men had been elected to the post and simply started their terms early.

Webber would not say whether he would have filed the lawsuit if a Democratic governor had appointed a Democratic lieutenant governor.

“I have no idea,” he said. “That’s a hypothetical that is so far out of the realm of where we are right now.”

The General Assembly has tried twice in the last five years to tweak the state law around the lieutenant governor. In 2013, Gov. Jay Nixon vetoed a bill that would have filled a vacancy in the office at the next general election, with a staff member handling day-to-day duties until then. And just this year, lawmakers rejected language that explicitly gave the governor the authority to appoint a lieutenant governor. It was a proposed amendment to a bill that gave the governor 60 days to appoint replacements to vacant county commissioner seats.

Follow Rachel on Twitter: @rlippmann

Rachel is the justice correspondent at St. Louis Public Radio.