Friday, November 11, 2011

Lt. Governor Not a Member of the Senate; Can't Vote on Organization

The question whether the Lieutenant Governor can vote on the organization of the Senate is not a political question but is one of constitutional import.

The Lieutenant Governor is a member of the Executive Branch and is not an elected "member" of "the Senate" as defined in Article IV, Section 7 of the Virginia Constitution. Therefore, it is unconstitutional for him to participate in organizing the Senate since he is not one of the 40 elected Senators who make up "the Senate."

It would also be a violation of the separation of powers clause of the Virginia Constitution, Article III, for the Lieutenant Governor, who is a member of the executive branch of government pursuant to Article V, Section 13, to cast a deciding vote on the organization of a body of the legislature.  As a member of the executive branch, he is specifically prohibited from exercising "the powers properly belonging to the [legislative branch]."

The provision for the Lieutenant Governor to case a vote in the case of an "equal division" does not apply to the organization of the Senate as a legislative "house" since the constitution specifically reserves the organization of the Senate to the "body" and to its elected "members."

I've set forth the constitutional provisions below for information.

Article III
Division of Powers
Section 1. Departments to be distinct.
The legislative, executive, and judicial departments shall be separate and distinct, so that none exercise the powers properly belonging to the others, nor any person exercise the power of more than one of them at the same time; provided, however, administrative agencies may be created by the General Assembly with such authority and duties as the General Assembly may prescribe. Provisions may be made for judicial review of any finding, order, or judgment of such administrative agencies.

Article IV
Section 1. Legislative power.
The legislative power of the Commonwealth shall be vested in a General Assembly, which shall consist of a Senate and House of Delegates.
Section 2. Senate.
The Senate shall consist of not more than forty and not less than thirty-three members, who shall be elected quadrennially by the voters of the several senatorial districts on the Tuesday succeeding the first Monday in November.
Section 7. Organization of General Assembly.
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.
Article V
Section 13. Lieutenant Governor; election and qualifications.
A Lieutenant Governor shall be elected at the same time and for the same term as the Governor, and his qualifications and the manner and ascertainment of his election, in all respects, shall be the same, except that there shall be no limit on the terms of the Lieutenant Governor.

Section 14. Duties and compensation of Lieutenant Governor. 
The Lieutenant Governor shall be President of the Senate but shall have no vote except in case of an equal division. He shall receive for his services a compensation to be prescribed by law, which shall not be increased nor diminished during the period for which he shall have been elected.