The Utah Constitution doesn't clearly allow Lt. Gov. Olene Walker to become governor when Gov. Mike Leavitt resigns to take a federal job, so the constitution should be changed.
That's the opinion of the Constitutional Revision Commission, a group of citizens, legislators and legal experts.
"We have an intolerable situation," said CRC member Rep. Scott Daniels, D-Salt Lake. "On its face, (the constitution says) the lieutenant governor only assumes the duties" of the departed governor.
If Utahns want the lieutenant governor to actually become the governor, "then we have to change" the constitution, he added. The constitution says one thing, but an opinion by Attorney General Mark Shurtleff says another — that Walker becomes the governor. "It is the worst of all cases," said Daniels, an attorney.
CRC members were careful — in fact, adamant — in saying Friday that Shurtleff's opinion issued earlier this summer is correct: Walker will become governor in title as well as duties when Leavitt is finally confirmed as administrator of the Environmental Protection Agency.
And the CRC doesn't want to fan any leftover flames on the issue. A yet unnamed group of GOP legislators hinted this summer that a court ruling would likely deny Walker the title of Utah's first woman governor, should anyone take the matter to court.
"I want to make it clear that we (the commission) are not challenging Olene Walker, not challenging the attorney general's opinion," said commission member Robin Riggs, a former staff attorney for the Legislature.
No, indeed, said other commission members.
Yet one after another agreed with commission staff attorney Robert Rees, who said the "plain language" of the constitution says clearly that should a governor leave office, the lieutenant governor becomes the "acting" governor, but is not governor in title. The office of governor can only be filled at the next election, said Rees.
That is opposite of Shurtleff's opinion, which said that Walker would become governor in title as well as duties, and as such then has the right to appoint a new lieutenant governor to file her old job.
Since no one has challenged Shurtleff's opinion in court, when Leavitt resigns to take the EPA post (which could happen within a month or two, as soon as the U.S. Senate confirms him), then Walker will be sworn in as governor and she will soon thereafter appoint a new lieutenant governor.
But that is not what the Utah Constitution says, several CRC members said, even though it may be what the Legislature wanted when it passed a rewrite of the executive succession section in 1979; what Utahns in general thought they were approving when they ratified the constitutional change in 1980.
"The attorney general's opinion is correct, because it reflects what the debate on this issue was all the way through" the legislative and amendment process, said CRC vice-chairman Jon Memmott.
Memmott, who is now a district judge, headed the Office of Legislative Research and General Counsel back in 1980 and personally wrote the amendment's analysis for the Voter Information Pamphlet that went out to all Utahns before the election where the amendment was approved.
CRC members asked Rees to draft a constitutional amendment for their November meeting that reflects their desire to make it clear the lieutenant governor becomes the governor should the governor die or resign. If legislators approved such a bill in the 2004 Legislature it would go before voters next November. In no way, CRC members stressed, would the amendment affect Walker's ascension to the governorship.
However, CRC members want to keep current constitutional language that says a lieutenant governor only "acts" like the governor should the governor become disabled, with the possibility that the governor could return to duty at a later date.
Left undecided for now is whether the Utah Senate or House, or both, should confirm a new lieutenant governor, should the governor leave or die and then by succeeded by his No. 2.
Currently, there is no confirmation process, because, said Rees, the lieutenant governor's office really wouldn't be vacant since the lieutenant governor would only be "acting" like the governor, and so not give up her seat.
But because of Shurtleff's opinion, Walker will appoint a new lieutenant governor, who will take office without legislative approval.
And should Walker for some reason not fill out Leavitt's term, which ends January 2005, then Utah would have a new governor who was not elected or confirmed, something that should probably be addressed by CRC and the Legislature, several CRC members said.
E-mail: bbjr@desnews.com