- The Washington Times - Friday, December 9, 2011

RICHMOND — A Richmond Circuit Court judge expects to rule this week on a complaint seeking to block Lt. Gov. Bill Bolling’s power to cast tiebreaking state Senate votes on organizational matters crucial to Republicans’ plans to exercise control of the General Assembly’s upper chamber.

State Sen. A. Donald McEachin, Henrico Democrat, filed the lawsuit on Dec. 5 seeking an injunction to temporarily prevent Mr. Bolling from breaking deadlocks on issues such as rules and organization of the chamber until a judgment on whether or not he has the constitutional authority to do so can be reached.

John A.C. Keith, a lawyer representing Mr. McEachin, who is also an attorney, said during arguments Friday that the intent of the case was “rather [than] try to undo or attack votes after they happen, to protect our position until the court can decide a declaratory judgment.”

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He said they were proceeding with the case now because of a provision in state code that allows members of the General Assembly to ask for a continuance on legal proceedings within 30 days of the start of the General Assembly session. The 2012 session is scheduled to begin on January 11.

“Everyone ought to be motivated to get the matter resolved,” Mr. Keith said.

The chamber will be split evenly between 20 Democrats and 20 Republicans come January following the results of the 2011 elections. Even before the results were final, Republicans said they intended to govern and organize as a majority party, leading to outcries from Democrats that such a prospect was unfair and defied the will of the voters.

Arguing for the defendant, Mr. Bolling, was Deputy Attorney General Wesley G. Russell Jr. Present at the hearing but not arguing was Solicitor General E. Duncan Getchell Jr. The chiefs of staff for both Gov. Bob McDonnell and Mr. Bolling were on hand to observe the proceedings, underscoring the political import of the outcome.

Mr. Bolling, who was not present at the hearing, has staunchly defended his constitutional right to cast tiebreaking votes on organizational or procedural matters.

“Those matters come before the Senate as simple reports,” he said. “There’s nothing in the Constitution that would limit my ability to vote on those matters.”

But part of Mr. Keith’s argument was couched in the separation of powers provision in the state Constitution. Because Mr. Bolling is a member of the executive branch, he is not a member of the Senate and therefore cannot cast tiebreaking votes on certain matters that the Constitution says require “a majority of Senators elected,” he argued.

“We don’t contend that the lieutenant governor has the power to cast tiebreaking votes,” Mr. Keith said. “He certainly does have the power to cast tiebreaking votes on general legislation.”

Mr. Russell argued that the premise of the lawsuit was “based entirely on future events which may or may not occur.”

The presumption that 20 Democrats and 20 Republicans will never agree on anything “is a necessary prerequisite for their case to make any sense,” he argued.

“When something is confined to the Senate, and for the Senate to decide, the lieutenant governor is part of that, period,” Mr. Russell said. “Until there is a tie, there is no issue for the court to resolve.”

He also argued that employing the separation of powers argument could preclude the court from weighing in on the matter, saying that Judge Beverly W. Snukals would, in effect, be acting as the president of the Senate herself if she issued a ruling laying out the lieutenant governor’s powers.

Mr. McEachin, the Democratic caucus chairman, said after the hearing that dealing with the issue before the session, rather than retrospectively after tiebreaking votes are cast, simply made sense — and that his door was always open to Republicans to work out a deal.

“We will meet with my colleague [Republican Caucus Chairman] Ryan McDougle, my colleague [incoming Senate Majority Leader] Tommy Norment anytime, anywhere to resolve this,” he said.

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