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Missouri lawyers argue over validity of lieutenant governor appointment

Marshall Griffin | St. Louis Public Radio
Lt. Gov. Mike Kehoe in March of 2018, when he was a Mo. State Senator representing Jefferson City.

A Cole County judge heard arguments Thursday on whether Mike Kehoe can legally hold the office of Missouri lieutenant governor.

The Missouri Democratic Party filed suit along with Darrell Cope, 93, a World War II veteran from southern Missouri who said in a written statement that he wants the opportunity to vote for the state’s lieutenant governor, instead of having him picked “in backroom deals.”

State law gives the governor the authority to fill vacant elected offices by appointment, “other than in the offices of lieutenant governor, state senator or representative, sheriff, or recorder of deeds in the city of St. Louis.”

Those words were the center of attorney Matt Vianello’s arguments Thursday. Representing Cope and the state Democratic Party, he said there’s no clear, direct language in state law or the Constitution that addresses filling vacancies in the lieutenant governor’s office.

“It is actually presumed that every statute, every word, every constitutional provision has meaning.” Vianello said. “So how do you give meaningto Article 4, Article 7, and Section 105.030? And the way that you give meaning to all of them is by saying that the governor does not have authority to appoint a lieutenant governor.”

He’s no longer asking Circuit Judge Jon Beetem to remove Kehoe from office. Vianello agreed with a legal opinion held by the attorney general’s office that an elected official cannot be removed from office by a civil lawsuit.

Instead, Vianello wants Beetem to declare that Parson lacked the authority to appoint Kehoe. If that happens, he said that Kehoe should voluntarily step down or face removal by the attorney general.

Credit Mark Wilson | Jefferson City News Tribune
Solicitor General John Sauer defended the appointment of Mike Kehoe as Lt. Governor before Cole Co. Circuit Judge Jon Beetem.

“That’s a question for the attorney general’s office, if the court declares the appointment was invalid,” Vianello said. “Will the attorney general follow the court and remove a person from office who shouldn’t be there?”

But Solicitor General John Sauer defended Parson’s appointment of Kehoe during Thursday’s hearing.

“[The plaintiffs] expressly plead, and they are correct in doing so, that there is no Missouri statute that specifies how a vacancy in the office of lieutenant governor shall be fulfilled,” he said. “If that’s the case, we go back to the default provision in the Constitution that vests the governor with this particular authority.”

Missouri governors have twice filled vacancies in the lieutenant governor’s office by appointment without being challenged in court.

In 1969, Gov. Warren Hearnes appointed William Morris as the state’s number-two executive after Hearnes took over as governor following Thomas Eagleton’s move to the U.S. Senate. In 2000, Gov. Roger Wilson named Joe Maxwell as lieutenant governor, after Wilson took over as governor following the death of Mel Carnahan.

In both of those situations, Morris and Maxwell had been elected to serve as lieutenant governor and were waiting to take office when vacancies at the top resulted in their being sworn in early.

Kehoe, 56, of Jefferson City, resigned his seat in the Missouri Senate last month after Gov. Mike Parson appointed him to the post. Parson took over as chief executive June 1, following the resignation of Eric Greitens.

Parson said he has the authority to appoint Kehoe, based on consultations with attorneys Lowell Pearson and Joe Bednar. Pearson served as general counsel for Republican Gov. Matt Blunt, while Bednar was general counsel for Democratic governors Carnahan and Wilson.

Beetem did not issue a ruling Thursday.

Follow Marshall on Twitter:@MarshallGReport

Marshal was a political reporter for St. Louis Public Radio until 2018.

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