Saturday, November 12, 2011

Which ties can the Lieutenant Governor break?

The Virginia Constitution provides that "[t]he Lieutenant Governor shall be President of the Senate but shall have no vote except in case of an equal division." Va. Const. Art. 5, section 14.

Starting next year, the Virginia Senate will be split 20-20, when it votes along party lines. There has been reporting in the blogs and other media that the Republicans are refusing to "share power" in the organization of the Senate, such as the representation on committees.

In 1996 Va. Op. Atty. Gen. 31, 1980-1981 Op. Va. Att'y Gen. 97, and 1979-1980 Op. Va. Att'y Gen. 178, the Attorney General has offered opinions about which ties the Lieutenant Governor can and cannot break.

In the 1996 opinion, the Attorney General concluded that the Lieutenant Governor could not provide the tie-breaking vote on matters subject to the provisions of Article XII, section 1: "Any amendment or amendments to this Constitution may be proposed in the Senate or House of Delegates, and if the same shall be agreed to by a majority of the members elected to each of the two houses, such proposed amendment or amendments shall be entered on their journals, the name of each member and how he voted to be recorded, and referred to the General Assembly at its first regular session held after the next general election of members of the House of Delegates. If at such regular session or any subsequent special session of that General Assembly the proposed amendment or amendments shall be agreed to by a majority of all the members elected to each house, then it shall be the duty of the General Assembly to submit such proposed amendment or amendments to the voters qualified to vote in elections by the people, in such manner as it shall prescribe and not sooner than ninety days after final passage by the General Assembly."

In the later 1980 opinion, the Attorney General concluded that the Lieutenant Governor could not provide the tie-breaking vote on matters subject to this provision of Article IV, section 11: "No bill which creates or establishes a new office, or which creates, continues, or revives a debt or charge, or which makes, continues, or revives any appropriation of public or trust money or property, or which releases, discharges, or commutes any claim or demand of the Commonwealth, or which imposes, continues, or revives a tax, shall be passed except by the affirmative vote of a majority of all the members elected to each house, the name of each member voting and how he voted to be recorded in the journal."

Similar language regarding the votes of the "members elected to each house" appears in Article IV, section 6, pertaining to legislative sessions; Article V, section 6, pertaining to overriding vetoes; Article VI, section 7 pertaining to the selection of judges; Article VII, section 1, pertaining to special acts for localities; Article IX, section 1, pertaining to changing the number of State Corporation Commissioners; Article X, section 9, pertaining to state debt; and Article XII, section 2, pertaining to constitutional conventions.

The earlier 1980 opinion concluded that there was no similar limitation that would prohibit the Lieutenant Governor from voting to break a tie vote on the ratification of an amendment to the United States Constitution, but held that the Rules of the Senate might control whether the Lieutenant Governor got to vote.

The organization of the General Assembly is controlled by Article IV, section 7, which provides: "The House of Delegates shall choose its own Speaker; and, in the absence of the Lieutenant Governor, or when he shall exercise the office of Governor, the Senate shall choose from its own body a president pro tempore. Each house shall select its officers and settle its rules of procedure. The houses may jointly provide for legislative continuity between sessions occurring during the term for which members of the House of Delegates are elected. Each house may direct writs of election for supplying vacancies which may occur during a session of the General Assembly. If vacancies exist while the General Assembly is not in session, such writs may be issued by the Governor under such regulations as may be prescribed by law. Each house shall judge of the election, qualification, and returns of its members, may punish them for disorderly behavior, and, with the concurrence of two-thirds of its elected membership, may expel a member." Nothing in this provision on its face would appear to limit votes to "members elected to each house" in the same way as Article IV, section 11, or Article XII, section 1.

Monday, November 07, 2011

What has changed in pest control since 1989?

The Virginia Supreme Court would seem to have gotten it wrong in one of its two decisions dealing with the non-compete clause used by a pest control company, having reached the opposite conclusion in 2011 from what it held in 1989.

Justice McClanahan, in her dissent, observed that such a fundamental shift in so short a time is an offense against the Rule of Law.

I recall having an oral argument before the late Judge Richard Williams of the Eastern District some years ago, in my only (and somewhat terrifying) appearance before him, and when he asked me about some old precedent that I tried to dismiss as too old, he laughed and said, "so you're saying the Age of Enlightenment set in sometime after that decision, and you know better now than the Supreme Court did back then?"

The Home Paramount firm, the employer in both cases, has branched out beyond termites and will also take care of those stinkbugs, according to their website.