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A question of succession.

Who Will Become Governor of Arkansas if Bill Clinton Becomes Our 42nd President?

LAWFUL ASCENDANCY: A constitutional debate is building over whether Lt. Gov. Jim Guy Tucker will automatically take on the gubernatorial mantle of power if Gov. Bill Clinton moves to the White House. Other gubernatorial hopefuls like Attorney General Winston Bryant and Sheffield Nelson, the 1990 Republican gubernatorial nominee, believe a special election would be in order to fill Clinton's unexpired term.

LT. GOV. JIM GUY TUCKER wasn't a happy camper to learn about a lawsuit that questioned if he would automatically take over as governor should Bill Clinton become president.

Insiders report that Tucker went ballistic during a conversation with his friend Art English, a political science professor at the University of Arkansas at Little Rock who filed the suit.

What caused Tucker to lose his cool?

"I probably ought not to comment on that," says English. "It was a private conversation."

Tucker, who could not be reached for an interview, was initially outspoken in his view that the lieutenant governor is the heir apparent to the governor's mantle of power once the state's top post becomes vacant.

Others, like former state representative David Matthews of Lowell, believe a special election is in order.

"I believe the court will interpret that a special election is necessary, and there will be a primary," says Matthews.

Pulaski County Circuit Judge John Plegge will make a decision on whether a special election is necessary Nov. 5 if Clinton is elected president Nov. 3.

The introduction of four-year terms for state constitutional officers is the catalyst for the succession controversy.

If Clinton were to resign from office with 12 months or less remaining in his term, Tucker would become acting governor with little debate. The 12- month time frame is specifically spelled out in the state constitution.

"The difference is there will be more than 12 months remaining in Clinton's term," says Scott Trotter, the Little Rock lawyer who filed suit on behalf of English.

As acting governor, Tucker would be responsible for calling an immediate special election to be held in 60 days.

Political insiders report that Tucker's perspective on the matter remains unchanged, but the man touted as the most likely to succeed Clinton has backed off on publicly opposing the idea of a special election.

Tucker may fear generating an electoral backlash if he comes across as trying to avoid a public referendum on the issue and circumvent the democratic process.

However, few question that Tucker and his supporters would prefer he quietly ascend to the position of acting governor without a fight -- and the cost -- of an abbreviated campaign.

Tucker and his lawyers are credited with the idea of using a third-party surrogate to defeat, or at least delay, any special election.

This strategy was executed when Martin Borchert's lawyers filed to intervene in the case. Borchert is representing the interests of any Arkansas citizen who might be opposed to the idea of spending taxpayer money on a needless special election.

In an effort to expedite things, Judge Plegge allowed Borchert to join the lawsuit. This opens the door for an appeal to the Supreme Court so Tucker would not have to be the one to appeal, or anyone else for that matter.

Don't think Tucker isn't covering his bases if a special election is called. By a happy coincidence, a number of political fund-raisers for Tucker have begun cropping up around the state.

One such event was held on Tuesday, Oct. 27, from 5-7 p.m. at the Conway Country Club. Guests were invited to make their checks payable to: Jim Guy Tucker's Campaign Debt Retirement Fund.

Guess who the sole creditor of Tucker's 1990 campaign for lieutenant governor is?

Jim Guy Tucker.

The most recent filing with the Arkansas Secretary of State, filed July 15, indicates that Tucker owes himself $367,473. Tucker loaned personal funds to bankroll much of his successful race two years ago.

A Tucker fund-raiser in West Memphis preceded Conway, and another is scheduled for Texarkana on Nov 2. A Little Rock fund-raiser, in the works for at least six weeks, is planned for election night.

This progressive dinner party will visit the homes of John Flake, partner in the commercial real estate firm of Flake Tabor Tucker Wells & Kelley; Frank B. Whitbeck, president of Signature Life Insurance; Rogers Cockrill, attorney-at-law; and Jack Fleischauer, president of Worthen National Bank of Arkansas.

The soiree is expected to draw 30-50 couples at $1,500 per for an expected net total of $45,000-$75,000 for the "first family to be."

"What we're trying to do is secure money for any future race that Governor Tucker might be involved," says John Flake. "Whether that is in a special election or two years from now remains to be seen."

Another interesting tidbit is that state law forbids candidates from accepting campaign contributions 30 days before or after a legislative session.

If this provision holds fast for a special election, Tucker would have an edge on filling his campaign war chest. The legislative session is scheduled to begin Jan. 11.

"I do not see how we could have a special election before the legislature convenes," says state Attorney General Winston Bryant. "At best, the supreme court couldn't get a decision out until maybe around Thanksgiving."

That means other candidates might have only two or three weeks to gear up financially if they wait until the Arkansas Supreme Court makes a decision.

And this might not be the only special election, either.

If Tucker were to become governor, some believe another special election would be needed to fill his post.

But all of this is predicated on having a gubernatorial vacancy. Even if Clinton wins the presidency, he has indicated that the timing of his resignation will depend on what the courts decide.

Under these circumstances, Clinton could conceivably protract his possible resignation until the Jan. 20 inauguration at noon Eastern standard time.

The possible impact on the coming legislative session adds more confusion to the scenario.

Looking at Legalities

The succession debate is focused on three areas of the state constitution. This controversial trio that judges will attempt to harmonize is:

Article 6 of the 1874 state constitution: "In case of death, conviction or impeachment, failure to qualify, resignation, absence from the state or other disability of the governor, the powers, duties and emoluments of the office for the remainder of the term, or until the disability be removed or a governor elected and qualified, shall devolve upon and accrue to the president of the senate."

Other provisions of the article specify that the president of the senate (i.e. the lieutenant governor) may exercise the powers of governor for the time being provided such vacancy shall not happen within 12 months next before the expiration of the term of office."

If the vacancy occurs with more than 2 months remaining on the governor's term, the lieutenant governor is required to immediately call for a special election to be held during the next 60 days.

Amendment 6 of 1914: "In case of the impeachment of the governor, or his removal from office, death, inability to discharge the powers and duties of the said office, resignation or absence from the state, the powers and duties of the office shall devolve upon the lieutenant governor for the residue of the term, or until the disability shall cease."

The amendment is more recent. However, it contains no express repeal of Article 6. This amendment created the office of lieutenant governor to address a succession controversy that arose in 1913.

State Sen. W.K. Oldham of Izard County was elected as president of the senate at the beginning of the 1913 legislative session.

On March 8, 1913, Joe T. Robinson resigned as governor to move up to the U.S. Senate, and Oldham at once began to discharge duties of governor.

Before the session ended on March 13, the senate elected J.M. Futrell of Greene County as president of the senate. Controversy arose over who had the rightful claim to be acting governor.

Oldham wouldn't step down as acting governor, arguing there was no gubernatorial vacancy since he was filling it.

Futrell argued that only the president of the senate could perform the duties of acting governor, and Oldham was no longer president of the senate.

The Arkansas Supreme Court reversed a Pulaski County Circuit Court ruling in favor of Oldham.

Amendment 29 of 1938: "Vacancies in the office of United States Senator, and all elective state, district, circuit, county, and township offices except those of lieutenant governor, member of the general assembly and representative in Congress of the United States, shall be filled by appointment by the Governor."

Amendment 29 is the most recent and most clear of the three. But its original intention was not to address filling a gubernatorial vacancy, although some read it otherwise.

Some have gone so far as to interpret this portion of the amendment as giving Clinton the power to pick his successor.

Clinton has made more appointments than anyone else in Arkansas political history. From a waggish perspective, it would seem only fitting that he pick his successor as one final hurrah before leaving office.

However, there is a serious flaw with this view.

There has to be a vacancy before an appointment can be made. Unless Clinton leaves office, there is no vacancy. And once he leaves office, he loses the gubernatorial power to appoint anyone -- including his successor.

Another interpretation of the Amendment 29 scenario is that the lieutenant governor becomes acting governor and appoints a successor for the remainder of the unexpired gubernatorial term.

That would put Tucker in the awkward position of having to appoint someone other than himself to an office he dearly wants to hold.

This gambit once more raises the nagging question of trying to fill a vacancy that doesn't exist. Because the lieutenant governor is acting as governor, there is no vacancy to be filled.

All of this underlines the viewpoint that Amendment 29 really doesn't have a great deal of relevance regarding gubernatorial succession.

Looking Back

Today's potential succession controversy could have played out earlier if state constitutional officers in Arkansas had four-year terms back when David Pryor was re-elected as governor in 1976.

Pryor appointed Kaneaster Hodges of Newport to fill the unexpired term of Sen. John McClellan, who died in November 1977.

After Pryor won the race for U.S. Senate in 1978, Hodges resigned from office early so Pryor could get a seniority jump on the incoming class of freshmen senators.

Pryor then resigned as governor and moved up to the U.S. Senate. Lt. Gov. Joe Purcell took over as acting governor for the remaining weeks until Bill Clinton was sworn in for his first term as governor.

Most people are expecting some type of short-fused primary to narrow the field of candidates if a special election is called.

"I would be shocked if the parties would have a caucus," says Sheffield Nelson, the Republican standard bearer in the 1990 gubernatorial race. "However, I'm not gearing up for any of this because I believe it will be a moot point."

And if voters do reject Clinton's presidential bid on Nov. 3, he will retain the title of governor, and the succession question will be cut short.
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Title Annotation:new governor of Arkansas
Author:Waldon, George
Publication:Arkansas Business
Date:Nov 2, 1992
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