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Republican Takeover of The Virginia Senate Rests On Judge's Ruling On Lieutenant Governor Bolling's Immunity From Lawsuits
State law gives legislators and others associated with the General Assembly immunity from lawsuits from 30 days before the session until 30 days after. That means that unless the judge issues an injunction, Bolling can claim immunity and organize the Senate under GOP leadership. From Betsy Combier: any kind of immunity from prosecution puts the person given such power above the law. We must get rid of this clause and hold anyone, even judges, accountable for their actions to the public they serve.
Judge to rule next week on Democrats' motion for injunction in Va Senate power dispute
LARRY O'DELL Associated Press, December 09, 2011

RICHMOND, Va. — A Richmond judge said Friday she will decide next week whether to temporarily bar Republicans from exerting control over the evenly divided Virginia Senate until a lawsuit by Democrats can be decided on its merits.

Republican Lt. Gov. Bill Bolling, who presides over the 40-member Senate, claims authority to cast a tie-breaking vote on any issue. Sen. Donald McEachin, D-Henrico, says in a lawsuit against Bolling that the Virginia Constitution bars the lieutenant governor from voting on internal rules and organizational matters, as well as some types of legislation.

An attorney for McEachin asked Circuit Judge Beverly W. Snukals for a preliminary injunction that would bar Bolling from voting on any disputed issues until the lawsuit is decided at trial. Attorney John Keith said the goal is to get a ruling before the General Assembly convenes Jan. 11.

State law gives legislators and others associated with the General Assembly immunity from lawsuits from 30 days before the session until 30 days after. That means that unless the judge issues an injunction, Bolling can claim immunity and organize the Senate under GOP leadership.

Keith said it would be better to get a definitive court ruling on the scope of Bolling's authority before the session rather than try to challenge legislative actions after they occur.

"Everybody ought to be motivated to get the matter resolved," Keith said. "We feel we've got a strong case and a solid position. It needs to be heard before the session."

Despite Bolling's role as president of the Senate, he is clearly a member of the executive branch, Keith contends.

"For the lieutenant governor to intrude into the organizational matters of the Senate would be a clear-cut violation of separation of powers," he said.

A key organizational matter typically decided early in the session is committee appointments. A working majority would allow the GOP to install committees dominated by Republicans, who could push the bills they favor to the Senate floor where Bolling would be the difference-maker in party-line votes.

Keith argued that the Constitution also prohibits the lieutenant governor from voting on certain measures, including revenue and spending bills, that can only be passed with the assent of a majority of the elected members of the Senate.

Wesley Russell of the attorney general's office, representing Bolling, told the judge that the Constitution does not restrict the issues on which the lieutenant governor can cast the tie-breaking vote.

Russell also argued that it would be improper for the judicial branch to intervene based simply on speculation about what might happen at the 2012 session. He said there might not even be any tie votes because senators don't always "vote in lockstep" along party lines.

"Why enter the political thicket at all when there might never be a dispute?" Russell said.

If McEachin gets his injunction, he could then use the same 30-day rule that's available to Bolling to delay a trial on the lawsuit until after the session, Russell said. That would essentially give the Democrats the result they are looking for without going to trial, he said.

Keith said McEachin would waive his right to immunity, but Russell said the senator would not be legally bound by such a promise and that other legislators could join the lawsuit and tie it up.

Democrats want a power-sharing arrangement similar to one enacted in the mid-'90s, when the Senate was evenly divided and Democratic Lt. Gov. Donald S. Beyer Jr. was the body's president. However, Democrats at that time agreed to share power only after conservative Democratic Sen. Virgil Goode of Rocky Mount threatened to side with the GOP.

Goode, who later was elected to Congress, eventually left the Democratic Party to become an independent before becoming a Republican.

Virginia Democrats file lawsuit over Senate control
By: Steve Contorno,12/05/11, Examiner Staff Writer, Follow on Twitter @scontorno
Virginia Senate Democrats made good Monday on their threat to sue Republicans to prevent Lt. Gov. Bill Bolling from casting deciding votes on important organizational issues when the new General Assembly convenes in January.

After Republicans gained two Senate seats in Novemeber, dividing the chamber 20 to 20, Bolling declared the GOP would operate the chamber as though they have a majority. That included naming Republicans committee chairs and giving them a majority of the members on each panel.

Virginia Senate Democratic Caucus Chair Donald McEachin came out in the days following and said his party would ask the courts to intervene, and on Monday a lawsuit was filed in Richmond City Circuit Court on behalf of the caucus.

“The voters elected 20 Democrats and 20 Republicans to the Senate. Yet, in spite of that, the Republicans choose to ignore these results and, instead, claim absolute power and authority,” said McEachin, D-Henrico. “This willingness to ignore the evenly divided results of the election is unfair and unacceptable.”

Democrats contend that the state constitution allows only elected members of the Senate to vote on organizational matters. The lawsuit asks a judge to determine that Bolling can only break ties on legislation, and asks for a temporary injunction until the issue is decided. Copies of the lawsuit were provided to Bolling and Attorney General Ken Cuccinelli, according to Virginia Democrats.

Both parties agreed to share power during the last 20-20 split under a Democratic lieutenant governor from 1995 to 1999.

In a previous statement, Bolling said, “There is no credible argument against the lieutenant governor's authority to cast votes on organizational matters and I am confident that the courts will agree.” But Bolling's office said it is unclear whether the power applies to other non-policy tie votes, like the budget.

Richmond judge could rule next week on Senate Democrats' suit
By: Michael Martz, December 10, 2011

There was no shortage of irony as Democratic Sen. A. Donald McEachin went to court Friday for a temporary injunction to prevent Republican Lt. Gov. Bill Bolling from casting the decisive vote in reorganizing the Virginia Senate next month.

Lawyers for McEachin invoked legal opinions by two former Republican attorneys general — J. Marshall Coleman and Jim Gilmore — to support their argument that only elected senators are allowed to vote on the chamber's rules.

The lead lawyer for Bolling cited a written opinion by constitutional scholar A.E. Dick Howard that Democrats tried to use 15 years ago to retain Democratic Lt. Gov. Donald S. Beyer Jr.'s power to cast the tie-breaking vote in reorganizing a Senate that appeared to be equally divided (ultimately, it wasn't).

There was debate about then-Gov. L. Douglas Wilder's decision to remove Attorney General Mary Sue Terry as counsel for the Virginia Retirement System in 1992, and a Richmond judge's ruling in 2004 that two Republican delegates had no standing to sue Gov. Mark R. Warner over tax increases in the state budget.

In the end, Richmond Circuit Judge Beverly W. Snukals took the request for an injunction under advisement and said she hopes to rule next week.

The clock is ticking for Democrats, who fear the lawsuit will languish until after the General Assembly convenes Jan. 11. If that happens, they expect Senate Republicans to reorganize the chamber as a majority, as they have vowed to do, and prevent the issue from being adjudicated until after the session is over.

"I don't know how you unring that bell," McEachin said after the hearing.

The Republican majority depends on Bolling, who presides over the Senate and breaks ties on general legislation.

John Keith, a Fairfax lawyer representing McEachin, called Bolling's potential participation in the chamber's organization a violation of the Constitution's separation of powers because it would allow a member of the executive branch to intrude on the legislative branch's prerogative.

Deputy Attorney General Wesley G. Russell, representing Bolling, said McEachin is asking the judge to violate the separation of powers by using "prior restraint against the political branch for an action that hasn't occurred yet."

Russell argued that the court has no jurisdiction to consider the suit because the lieutenant governor is protected by sovereign immunity from legal action against him for performing his duties.

He also questioned whether the court has anything to decide, because there is no guarantee Republicans and Democrats will stalemate over the reorganization or that Bolling would break the tie.

"Until there is a tie, there is no issue to resolve," he said.

But Bolling and other Republicans made it clear Nov. 9, the day after the GOP won 20 Senate seats, that they would reorganize the chamber and its committees and rule as a majority rather than share power, as Democrats ultimately did in 1996.

Keith said a temporary injunction is necessary because state law allows officers of the General Assembly to receive a continuance of any court action involving them during the legislative session, and 30 days on either side.

"We think this needs to be heard and addressed before the session begins," he said.

If the court ultimately were to rule that Bolling could not vote on the reorganization, Keith said that would allow "compromise and negotiation" to resolve the issue.

Russell said that's why the dispute doesn't belong in court in the first place.

"The public interest is never served by not allowing the political powers to work things out," he said. (804) 649-6964

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