- The Washington Times - Friday, December 16, 2011

RICHMOND — A Richmond judge has denied a Democratic state senator’s bid to block Lt. Gov. Bill Bolling from casting tiebreaking votes in the General Assembly’s Upper Chamber — clearing the way for, theoretically, complete GOP dominance on Capitol Square.

Sen. A. Donald McEachin, Henrico Democrat, had sought a temporary injunction to prevent Mr. Bolling from casting such votes on tax matters, election of judges, constitutional amendments, and the all-important task of organizing committees, which determine which bills make it to the floor and which perish before a full vote.

“For this court to intervene at this point before the legislative process has even begun would be tantamount to issuing an impermissible advisory opinion,” wrote Judge Beverly W. Snukals. “The declatory judgment statute was not intended to vest the courts with authority to render advisory opinions, decide moot questions, or answer inquiries which are merely speculative.”

Come January, the legislature will be evenly split at 20 Democrats and 20 Republicans. The GOP has declared its intention to govern as a majority party, a notion Democrats have decried as an unfair power grab.

Judge Snukals also cited the separation of powers provision in the state Constitution, writing that “in essense, the Plaintiff is asking this Court to invade the province of the General Assembly, the legislative arm of government. … in this case, this Court cannot intervene in the normal operating procedures of the Senate and enjoin one of the highest officials in the Commonwealth from performing his constitutional duties.”

Lawyers for Mr. McEachin had argued that Mr. Bolling, though he presides over the Senate, is, in fact, a member of the executive branch and therefore cannot cast tiebreaking votes on items like committee membership and taxation matters that require a “majority of members elected.”

But Deputy Attorney General Wesley G. Russell Jr., arguing for Mr. Bolling, said that the position as lieutenant governor granted him sovereign immunity from any sort of injunctive relief, and that the lawsuit was couched in the premature assumption that such matters would necessarily end in a 20-20 tie.

Judge Snukals wrote that because Mr. McEachin was unlikely to succeed on the merits because of the ripeness and the separation of powers issues, there was no need for the court to consider a sovereign immunity plea.

“The public interest would not be served by having a deadlocked Senate that is unable to agree on organization,” she wrote.

The ink was barely dry on the order before the partisan sniping began.

“The Senate Democratic caucus will continue to explore all its options, both legal and procedural, to resolve this issue in a way that reflects the actual outcome on election day, not an arrogant partisan power grab, totally to the benefit of one Party that does not reflect a majority of the Senate,” Mr. McEachin said.

He said that while he disagreed with the decision, it was purely procedural.

“The judge determined that the matter was not ripe for a final determination on the merits,” he said. “The opinion was not a decision on the merits of whether the Lieutenant Governor can vote on Senate organization.”

Meanwhile, Republican Party of Virginia Chairman Pat Mullins said that a lawyer as skilled as Mr. McEachin “should have seen this coming a mile away.”

“If Senator McEachin is willing to file such a frivolous lawsuit, I can’t help but wonder if the next phase of this temper tantrum is for he and his Democrat colleagues to flee the state like their counterparts in Wisconsin did,” he said. “Hopefully, Democrats will accept the judgement of Virginia’s voters — and now the courts — with a measure of grace.”

Coincidentally, the ruling came on the same day that the liberal-leaning Public Policy Polling firm released results showing that Virginia voters were mixed on the issue.

Thirty-one percent of voters think that the GOP should have full control of the Senate, while 55 percent thought there should be a power-sharing arrangement, predictably breaking along party lines with independents tipping the vote in favor of power-sharing.

However, by a 37-34 margin, voters said that Mr. Bolling should be allowed to cast the all-important tiebreaking vote on organizing the Senate.

“Takeaway: in theory voters think there should be power sharing but they also think Bolling has the right to break the tie … so they’re basically sending a message to the GOP that it should share power, even if it doesn’t have to,” the PPP polling memo says.

The poll surveyed 600 Virginia voters from Dec. 10th to 12th, and has a margin of error of plus-or-minus 4 percent.

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