Dick Posthumus might still become Governor of Michigan, but he wouldn’t like the circumstances and the pay isn’t very good, either.
Posthumus, a former state Senate Majority leader and Lieutenant Governor, lost a fairly close race for the state’s top job to Democrat Jennifer Granholm in 2002. He now serves as a senior adviser to the current governor, Rick Snyder.
But Posthumus tops a list of five designated “emergency successors” to Snyder if something catastrophic happens to the incumbent, according to an obscure law enacted in the “bomb-shelter” paranoid 1950s that almost no one knows anything about. More about that later.
The reason all this is worth thinking about is because a new television series, “Designated Survivor,” is scheduled to kick off Sept. 21 starring Kiefer Sutherland.
The plot goes something like this: During a presidential State of the Union Address at the U.S. Capitol, an explosion kills the President, Vice President, Speaker of the House and President Pro Tempore of the Senate and all the members of the cabinet except one. Sutherland plays that one surviving cabinet officer who has been designated not to attend that State of the Union. He is called the “designated survivor” (in the TV pilot Sutherland plays the Secretary of Housing & Urban Development). Despite that cataclysmic event, government would still go on. Someone (Sutherland, in this case) would be in charge.
The post-World War II Republican majority Congress, elected in 1946 — the same Congress that also submitted to the states for ratification a presidential term limits resolution which later became the 22nd Amendment — enacted the Presidential Succession Act of 1947. Before the 1947 law, the House Speaker and President Pro Tem had not been in the line of presidential succession since 1886. In 1886, cabinet secretaries were placed in line of succession after the VP in the order that their cabinet departments had been created. But the new 1947 law changed that. It restored the Congressional leadership after the Vice President, to be followed by Secretary of State, Secretary of the Treasury and Secretary of Defense (a new department that had just been created to replace the old Secretary of War and the Navy department), and THEN the remainder of the cabinet secretaries, with seniority based on the order their departments had been created over time.
Bob LaBrant, author and senior counsel with the Sterling Corporation in Lansing, observes that Michigan has its own constitutional order of gubernatorial succession in Article V, Section 26: Lieutenant Governor (LG), the elected Secretary of State (SoS), and the elected Attorney General (A.G.).
This line of succession applies not only if the governor dies, resigns, or is convicted and removed on impeachment charges, but also if the governor becomes disabled or is merely absent from the state. For example, when former Gov. Granholm and LG John Cherry were out of the state attending a Democratic National Convention anytime between 2003 and 2011, Secretary of State Terri Lynn Land, a Republican, became Acting Governor for a few days.
Stories are legendary (and perhaps apocryphal) about how Democratic Lt. Gov. T. John Lesinski (1961-65) commanded the state police to provide him with Gov. George Romney’s car when Romney was at some out-of-state speaking engagement. Lesinski, as Acting Governor, would puff away on his favorite cigar in the back of the limo, hoping to provoke a response from Romney, a strict Mormon who didn’t drink or smoke, when the Republican incumbent returned to Michigan.
Article V, Section 26, of Michigan’s Constitution has parallels on the issue of gubernatorial disability to the 25th Amendment to the U.S. Constitution ratified in 1967. The inability of the governor to perform his or her duties is to be determined by a majority of the Supreme Court after receiving a joint request from the House Speaker and Senate Pro Tem. The state Supreme Court on its own initiative can determine if, or when, the inability ceases.
The 25th Amendment also provided the means for Gerald Ford to eventually become President by allowing President Richard Nixon to appoint him to fill the vacancy created when Vice President (VP) Spiro Agnew resigned as part of a plea deal following a bribery indictment in 1973 (he was later convicted). Under the 25tth Amendment, the Ford VP nomination required confirmation votes in both the House and Senate. When Nixon resigned the presidency in 1974, VP Ford became President.
But no Michigan Constitution (including the current one) has ever made any provision for filling a vacancy in the office of Lieutenant Governor. The last time LG was vacant (1969-71) was when William Milliken became Governor after George Romney resigned to become Secretary of Housing and Urban Development (HUD) in the new Nixon Administration.
In 1963, the Michigan legislature did enact a law permitting the governor to appoint a LG to fill a vacancy with the advice and consent of the Senate. That law was later amended to permit the Senate, by resolution with a record roll call vote, to appoint an acting LG of the same party as the governor (PA 8 of 1969). It was under these circumstances that Senate President Tom Schweigert (R-Petoskey) was named acting LG by the Senate although there was no constitutional basis for doing so. If Milliken had resigned the governorship at that time, Secretary of State James Hare, a Democrat, would have become Governor, not Schweigert. In two A.G. opinions that followed, Democrat Frank Kelley said those statutes did not cure the deficiency and that there is no authority to fill a vacancy for LG.
The only governor to die in office was Republican Frank Fitzgerald., who was Michigan’s Grover Cleveland. Fitzgerald, like President Cleveland, was the only chief executive to serve non-consecutive terms, being elected in 1934, losing in 1936, and then reclaiming the office from the man who had beaten him two years earlier, Frank Murphy, in 1938. But then Fitzgerald died only two and a half months into his second term. He was succeeded by a SUPER Grover Cleveland — Luren D. Dickinson, who had just been elected to his SEVENTH non-consecutive two-year term as LG in 1938 after two earlier stints in the office (1915-21 and 1927-33). At age 79, Dickinson became the oldest man ever to serve as Michigan Governor, but he couldn’t win a full term on his own in 1940, being defeated by Democrat Murray Van Wagoner.
After losing the 1940 general election, Dickinson “appointed” Mathilda Dodge Wilson, an heiress to an automobile fortune, to become the first female LG. She “served” only about six weeks before their terms jointly ended, and there is considerable legal doubt that her appointment by Dickinson was legal.
There is no doubt, however, that a governor can fill vacancies in the offices of Secretary of State and Attorney General. No confirmation vote is required. That’s how Frank Kelley became A.G., eventually serving a national record 37 years in the office. Kelley was appointed in late 1961 by Gov. John Swainson to replace Paul Adams when the latter resigned to accept a Swainson appointment to the state Supreme Court.
State Senator Steve Bieda (D-Warren) wants to clean up the whole LG mess. In the current session of the 98th Michigan Legislature, Bieda has introduced two Senate Joint resolutions to amend the 1963 Michigan Constitution to provide for filling a vacancy in the office of LG. To place that question on the ballot for voter approval requires a 2/3 majority in each legislative chamber. No hearings have been held and no votes taken on either resolution. This week is the deadline for the Legislature to place any constitutional amendments on the Nov. 8 statewide ballot.
Bieda’s SJR P would have the governor call a special election to fill a LG vacancy. Such an amendment could possibly restore the T. John Lesinski experience with a LG of one party and a governor of the other. Accordingly, it will never get a vote in a legislature controlled by Republicans, who wrote the current Constitution getting rid of the historic “split” possibility. Besides, with a Republican governor ensconsed, why take a chance on an election that might produce a Democratic LG?
Bieda’s other resolution, SJR Q, is far more sound. It provides that, in the event of a vacancy, the governor would nominate a LG who would take office upon confirmation by a majority vote in both the state House and Senate, a requirement missing in Article V, Section 22, of the state Constitution that provides for filling vacancies in the offices of SoS and A.G.
Finally, let’s look at something few know about. Back in 1959 at the height of the Cold War, when it was common for students to do “duck and cover” drills in preparation for a possible nuclear attack on Michigan, the GOP-dominated Legislature passed and Democratic Gov. G. Mennen Williams signed into law PA 202 of 1959, the Emergency Interim Succession Act. This law provides that the governor, SoS, and A.G. each designate five people to assume the duties of their offices and serve as emergency successors should a disaster, enemy attack or civil disorder prevent the exercise and discharge of their duties by the lawful incumbent(s). However, only the five selected by the governor may serve as governor (MCL 31.4). If you’re on the “List of Five” for SoS or A.G., you can take over only that office as an emergency interim successor, but not governor.
This statute also provides that the Senate President Pro-Tem and the Speaker of the House, in that order, should follow LG, SoS, and A.G. to become Acting Governor as a result of a catastrophic emergency.
Using that scenario, if a disaster killed the governor, LG, SoS, A.G., Senate Pro-Tem and the House Speaker, the first person on Gov. Snyder’s list would become Acting Governor, followed by the remaining four, in order, if anything should happen to #1.
Who IS #1? Dick Posthumus. The other four on the “Doomsday List,” although unelected, could become Michigan’s acting governor — #2, Col. Kriste Etue, Director of the State Police; #3, Nick Khouri, State Treasurer; #4, Keith Creagh, Director of the Dept. of Natural Resources; and #5, Nick Lyon, Director of Health & Human Services.
Gov. Snyder’s list includes three new names since earlier lists he submitted to the Office of the Great Seal — Etue, Khouri and Lyon, who replaced former DHHS director Maura Corrigan, former Dept. of Environmental Quality Director Dan Wyant, and former Dept. of Licensing & Regulatory Affairs Director Steve Hilfinger.
Dick Posthumus gets no extra pay as Acting Governor if he is needed. The Act says any emergency interim successor called upon to exercise the powers and duties of the office shall receive no additional compensation except for his or her necessary and actual expenses.
Under the Act, the Legislature (if there is one) may terminate the authority of emergency interim successor at any time. An election to fill the vacancy shall be held within “one year” of the disaster which caused the emergency interim successor to become Acting Governor. Any disputes arising under PA 202 of 1959 shall be determined by whoever is exercising the powers and duties of Governor. The chief justice of the Supreme Court (assuming there still is one) shall determine all disputes regarding the office of Governor.
Curious for more? Who would assume the duties of SoS if something happened to her and there was nobody above her in office to make an appointment to fill the vacancy she left? SoS Ruth Johnson’s list runs as follows: #1 Michael J. Senyko, Chief of Staff; #2, Rose M. Jarois, Director of Department Services Administration; #3, Michael L. Wartella, Director of Customer Service Administration; #4, William R. Kordenbrock, Director of Legal Services Administration; and #5, Christopher M. Thomas, Director of Elections.
How about the same for Attorney General? A.G. Bill Schuette has designated #1, Carol Isaacs, Chief Deputy Attorney General; #2, Matthew J. Schneider, Chief Legal Counsel; #3, Aaron Lindstrom, Solicitor General; #4, B. Eric Restuccia, Assistant Solicitor General; and #5, Denise Barton, Practice Group Manager.