If you want to open a can of worms at Peach Pundit, simply start a thread that gives readers an excuse to talk about “separation of powers” and the role of the Lieutenant Governor. Eventually someone will start throwing around the term “separation of powers” and even suggest that a lawsuit is inevitable if Lt. Gov. Casey Cagle is given back some of the traditional administrative duties of the office he holds.

But such a viewpoint fails to consider the context of the notion of separation of powers in the twenty-first century and oversimplifies a complex subject to the level of an episode of Schoolhouse Rock. Eventually it bends the concept so far by suggesting that the judiciary may intervene to sort out a disagreement about Senate rules, that it breaks the principle of separation of powers more effectively than any change in Senate rules could manage.

Context and the Georgia Constitution

Now whenever a writer starts talking about “context” the very next thing you should expect is for them to try and tell you that some words you think you understand mean something completely different from what you think they mean. But when construing our state Constitution, the most important piece of context is the rest of the document itself. Check it out or just jump to the summary.

Section II, paragraph III of the Georgia Constitution (.pdf) states

Separation of legislative, judicial, and executive powers. The legislative , judicial, and executive powers shall forever remain separate and distinct; and no person discharging the duties of one shall at the same time exercise the functions of either of the others except as herein provided.

Sounds simple enough, right? You might even point to an Attorney General’s opinion addressing whether an Assistant District Attorney may serve in the legislature that along the way discusses the Constitutional separation of powers.

“This provision distinguishes our state Constitution from the federal Constitution, which has no express provision ‘prohibit[ing] the officials of one branch of government from exercising the functions of the other branches.’”   Sentence Review Panel v. Moseley, 284 Ga. 128, 129 (2008).

In addressing the application of the separation of powers doctrine, it is evident that under the plain language of the Constitution any analysis of whether the doctrine has been violated must look both at the legal designation of the branch of government to which a particular position is assigned as a matter of law and at the underlying duties and responsibilities that are being performed.

Seems pretty clear. Until you get to Article IV (Constitutional Boards and Commissions) and Article V, Section I, paragraph III, which states

Lieutenant Governor. There shall be a Lieutenant Governor, who shall be elected at the same time, for the same term , and in the same manner as the Governor. The Lieutenant Governor shall be the President of the Senate and shall have such executive duties as prescribed by the Governor and as may be prescribed by law not inconsistent with the powers of the Governor or other provisions of this Constitution [emphasis added]….

The rise of administrative agencies in Georgia government

The first sign that separation of powers isn’t going to be as simple as it seems is not the grant of power to the Lt. Gov., but the creation of Constitutional Boards and Commissions, which are not clearly placed in any of the three traditional branches and in many cases exercise a blend of quasi-legislative, quasi-judicial and executive powers.

In fact, these boards and commissions have their own section of the Georgia Constitution, Article IV, while the legislative branch is constituted in Article III, the executive branch in Article V and the judiciary in Article VI. This clearly demonstrates that as far as separation of powers, these agencies are neither fish nor fowl; they throw a monkey wrench into any simplistic understanding of separation of powers.

The Georgia Public Service Commission, created in Article IV, Section I is the best example of a triple-quasi administrative agency. Under our current constitution, the PSC is established “for the regulation of utilities” and exercises “such jurisdiction, powers, and duties as provided by law” without further explanation or limitation.

The Public Service Commission was established in 1879 as the Railroad Commission of Georgia. During this period most states developed similar agencies to address the complex issues of railroad regulation. In 1922, the commission was given its current name in recognition of the expansion of its regulatory responsibilities, which came to include intrastate trucking, limosuines and household goods movers, for-profit electric utilities, gas companies, intrastate telephony and other similar industries that are widely considered to be “natural monopolies.”

This mirrored the rise in the federal government of a new form of government called the administrative agency, a development that would accelerate through the New Deal era until the 1980s and 1990s saw movements to consolidate and in some cases, curtail these agencies.

By 1952, U.S. Supreme Court Justice Robert Jackson wrote:

The rise of administrative bodies probably has been the most significant legal trend of the last century, and perhaps more values today are affected by their decisions than by those of all the courts, review of administrative decisions apart. They also have begun to have important consequences on personal rights. Cf. United States v. Spector, 343 U. S. 169. They have become a veritable fourth branch of the Government, which has deranged our three-branch legal theories much as the concept of a fourth dimension unsettles our three-dimensional thinking.

Courts have differed in assigning a place to these seemingly necessary bodies in our constitutional system. Administrative agencies have been called quasi-legislative, quasi-executive, or quasi-judicial, as the occasion required, in order to validate their functions within the separation of powers scheme of the Constitution. The mere retreat to the qualifying “quasi” is implicit with confession that all recognized classifications have broken down,and “quasi” is a smooth cover which we draw over our confusion, as we might use a counterpane to conceal a disordered bed.

FTC V. RUBEROID CO., 343 U. S. 470 at 487-88 (1952) (Jackson, J., dissenting).

But back to Georgia. Under current legislation, the Public Service Commission promulgates and enforces rules about how regulated companies may interact with ratepayers. This is a legislative function that has been delegated by the General Assembly. The PSC also makes decisions in rate cases and in cases between regulated entities that include procedural rules, lawyers, sworn witnesses, and written decisions. This is a quasi-judicial function, and in some cases includes the ability to levy fines. Until changes made under Governor Perdue, the PSC had sworn enforcement officers with badges, guns, and Crown Vics; clearly an executive function.

This mish-mash of functions from the three traditional branches of government would almost certainly be unconstitutional…. if it weren’t actually in the Constitution itself.

There are other examples I could give, but I’m well over 900 words now, and Richard Halicks at the AJC must be judging me harshly by now.

Whatever simplistic understanding we might have had about the meaning of “separation of powers” does not survive the rise of administrative law, and must give way to a more nuanced understanding.

If it’s in the Constitution, then by definition, it cannot be unconstitutional

The problem with simply asserting that “[t]he Lt. Governor is a member of the Executive branch and has no business being involved with legislating” is that the Constitution requires that he preside over the Senate. It’s not optional under the actual language of the Constitution. “Shall” does not mean “may” and if presiding over the Senate is required by the Constitution, it is by definition constitutional.

So what did the framers of our state constitution mean when they said the Lt. Gov. shall be President of the Senate? The courts, should it ever come to that, would likely look at what the role of the Lt. Gov.

For nearly sixty years between the 1945 adoption of the first Georgia Constitution to include Lt. Gov. as a constitutional office until the 2003 stripping of many of the internal organizational functions from Lt. Gov. Mark Taylor, the Lt. Gov. exercised powers including naming of committee chairs and playing an active role in the internal organization of the Senate. No successful constitutional challenges were mounted against the exercise of these powers.

The Senate can delegate power to the Lieutenant Governor

When the Lt. Gov. exercises organizational powers under the Senate Rules, it is clear that the Senate has delegated those powers to him. While that historical context is not conclusive, it does suggest that a full generation of Georgia politicians believed that the Lt. Gov. could exercise such powers if they were properly delegated to him by the General Assembly.

I’m not aware of any Georgia court cases determining the limits of the General Assembly’s ability to delegate organizational responsibilities to the Lt. Gov. in his role as President of the Senate, but some cases addressing the legislature’s power of delegation in the agency context are helpful.

In 1990, the Georgia Supreme Court addressed the limits of the General Assembly’s ability to delegate its legislative power to an administrative agency and cited an earlier case for the proposition that “[w]hile the Constitution declares that the three departments of government shall be separate and distinct, this separation is not and from the nature of things cannot be total.”

A 1978 case in the Supreme Court dealt with the legislature’s grant of some legislative power to another constitutional officer

It has often been held that the constitutional restriction on delegation of legislative powers does not prevent the grant of legislative authority to some ministerial officer, board or other tribunal to adopt rules, by-laws, or other ordinances for its government, or to carry out a particular purpose.

Scoggins v. Whitfield Finance Co. 249 SE2d 222 (1978).

So it is clear that the General Assembly, or one house, can delegate some of its rulemaking power to a constitutional executive officer, like the Lt. Gov. but there are also limitations on the General Assembly’s power to delegate.

In 1936, the Georgia Supreme Court discussed limitations on the legislature’s delegations, stating “those functions which are essentially legislative must be performed by the legislative body, and may not be delegated to executive or ministerial officers.”

So we now have some idea of the limitations of the powers that the Senate might delegate to the Lt. Gov. — somewhere between merely administrative or ministerial functions, up to the limits of essential legislative functions dealing with substantive legislation. While not the height of clarity, it appears that the traditional functions of the Lt. Gov. in presiding over the Senate can legitimately be delegated to him by the General Assembly.

It has been suggested that any Senate rules that restore the traditional functions of the Lt. Gov. might result in a lawsuit challenging the rules. Another commenter raises the issue that private citizens would not have standing to challenge the rules in a lawsuit.

Standing is the legal doctrine stating that a plaintiff cannot challenge a law unless she can demonstrate that she has actually been harmed by it or will imminently be harmed. Georgia’s cases on standing generally require a plaintiff challenging a legislative action as unconstitutional to show that they are individually harmed by the statute they are challenging. It is difficult to imagine a set of circumstances in which a court would find that an individual plaintiff had been harmed by the adoption of Senate rules that delegate administrative functions to the Lt. Gov., though some of you have more fertile imaginations that I do.

We now come to the real separation of powers issue, which a commenter touched upon; that a state court is unlikely to insert itself into an internal dispute over legislative procedural rules. While it is true that in our system of government the courts are the final arbiters of constitutionality, they traditionally have shown great deference to the other branches of government in organizing their own internal affairs. And if we are talking about rules adopted by a majority of the Senate, the defendant in such a challenge would not be the Lt. Gov., but the Senate itself.

In summary, the doctrine of separation of powers under the modern Georgia constitution is more complicated than the Schoolhouse Rock version some citizens proclaim. The existence of Constitutional boards and commission, which at times exercise powers traditionally considered to be legislative, judicial and executive, at the same time that they stand outside the traditional three-ring structure indicates that strict separation is no longer the rule. The constitutional requirement that the Lt. Gov. shall serve as President of the Senate means that some exercise of legislative involvement by the Lt. Gov. is not only permissible under the constitution but is required. Further delegation by Senate Rules of administrative functions to the Lt. Gov. is almost certainly permissible under the constitution, though not required. Ordinary citizens will not have standing to challenge the constitutionality of such rules in any case. And no court in its right mind will wade lightly into the propriety of internal Senate Rules.

I take no position on whether the Senate should delegate more of the traditional functions exercised by past Lt. Govs. to the current occupant of that office. That is a political decision for the Senate alone.

Today at noon we’ll renew the football portion of the rivalry between Georgia Tech and the University of Georgia. Tech and UGA first faced each other in football on November 4, 1893. Tech won 28-6.

During and after the game, disgruntled Georgia fans threw rocks and other debris at the Georgia Tech players and chased the victorious Blacksmiths back to their awaiting train.

“At one time early in the last half of the game, a stone was hurled at one of the Tech players, striking him a cruel blow in the head… At another time, one of the Athenians drew a knife and threatened one of the Techs’ better players… The Techs were also poked and gouged with canes on plays toward the boundary lines… Some of the crowd had the privilege of the gridiron equally with the players.”

Some things never change.

Enjoy the game and may the righteous men of Tech prevail.

This image was used in an email by Swapna Bhave, a candidate for Johns Creek City Council. From all accounts, she is a good candidate with solid community credentials, and I have heard from several sources that a majority of the incumbent city council is quietly rooting for her.

But this photo is a demonstration of what not to do in campaign photography.

The Johns Creek Dog Park is spectacular. I was at the grand opening and it’s a combination Six Flags and White Water for our furry family members. It’s wildly popular for families, and I suspect it will develop into the singles’ hot spot for North Fulton. It’s a great place for campaign photography.

Just mind your misé en scene and ensure that you’re not unwittingly writing a punchline at your candidate’s expense.

That’s right, today is December 25th, and that now means it’s Jason Pye’s birthday.

As you wind down your Christmas celebrations, please take a moment and wish our resident Libertarian and Peach Pundit Assistant Editor a very happy birthday.

Though I’ve been trying to start the rumor that he would be turning 45 today, he claims it’s his 30th. Regardless, he’s been celebrating for a week, and I hope being snowed in gives him one more day of Pyepalooza.

Happy Birthday Jason!

…and I thought “Bearded Spock Day” was over.

Then Jay Bookman has to go and say that Newt Gingrich is being REASONABLE?

These are frightening words to type, but … Newt Gingrich and I agree with each other.

Talking to Greta van Susteren last night on Fox, the former speaker noted that Dede Scozzafava, the Republican candidate in New York’s 23rd congressional district, had been chosen by county party leaders in that district to be the GOP’s nominee in next week’s special election.

Yet Republicans from outside that district are trying to overrule that choice as ideologically unsuitable and impose their own candidate on the district.

It’s O.K., Jay. We’re here to help you through this. You see, you haven’t become a conservative. According to many of my friends on Facebook, Gingrich has now become a dirty lib’ral. How’s that you say? Well, apparently he has the gall to support states rights and local control, in a state that doesn’t think like ours. What a commie.

Please Jay, please don’t try to remind me that me and my conservative friends ran several election cycles on the principle of federalism. You know, we didn’t really hate gays. We just want each state to be able to decide what’s appropriate for them and their gays. Abortion? STATES’ RIGHTS, JAY! Leave the federal government out of it. Let the states decide.

But you see Jay, those elections are sooo 2006. And well, those didn’t turn out so well for us. I mean, we’re still for states’ rights so long as it means we can declare Medicare unconstitutional. But now that we realize that New York may want their own ideas on abortion and teh gays, well, I think you understand. That just ain’t right.

So you see Jay, we’re not doing that whole neocon states’ rights stuff anymore. We should have never fallen for the version G. W. Bush tried to sell us. You know he was born in Connecticut don’t you? I mean, we were O.K. with him when we thought he was a Texan, but Connecticut? No. No. No.

So anyway Jay, I hope you understand that we really meant that we were for states rights, up until New Yorkers want to select a pro-gay, pro-choice person who supports the 2nd Amendment, and is against Obama Care and Cap & Trade. I mean, really, how did the NRA endorse her knowing that gay people might get equal hunting rights? Lord, at this rate, California might think it has the right to legalize pot.

So now we’re just for states rights when we can invoke them. I think we’re working on a special invokin’ amendment for that. It should be done soon. And once we pass that, we should be able to tell you which rights we think our state should have each time we commence an invokin.

So we understand that you were worried, but you see, Newt’s a RINO. He thinks we’re a bit misguided by letting them folks up in New York figure out what’s best for them. We’re gonna send him a strong message though. I mean, he was pretty good once, but now he’s got the squish all over him. I guess that’s what we get for letting a dude from Pennsylvania be a Speaker of the House from Georgia.

That won’t happen again. We’re keeping our states’ rights pure this time. It’s all about Georgia Jay. Newt doesn’t get that no more. So no worries. You and Newt can publicly go together to your socialist party meetings. None of us will think you are a conservative when we see you two together. This is a hill to die on Jay, and he’s dead to us.

Already nominated here:

1)  Saxby Chambliss, general election

2) McCain-Palin, Presidential

For your consideration:

3)  Dale Cardwell, U.S. Senate Primary – Seriously, dude, you had the much repressed populist in me pulling for you until you climbed up that smokestack.

4)  Barry Flemming, 10th Congressional Primary – Did the Whitehead Campaign teach you nothing about listening to a few power brokers in Atlanta about how to handle that district?

5)  Keith Gross, Emperor of the World – Never, ever challenge the public to do a simple open records search if you have a public record.  And dude, try at least living in the State that you want to be elected in.

6)  Fred Thompson, Republican Presidential Primary.  I’d write more about this, but I had to take two naps while typing just thinking about his performance.  So, so disappointing.

7)  Bob Barr for President.  Seriously, you took the energy, fundraising, and approximate 5% polling numbers from Ron Paul, and turned it into what?  I need another nap.  (Don’t take it personally Jason, you’re doing the best with what you have to work with.)

I know I’m forgetting a few, consider the nominations open.

UPDATED TO INCLUDE:  8.  Hillary Clinton – Standard bearer, Clinton Dynasty.  I guess I forgot to include her because I’m still not sure her campaign is really over.   Those Clinton’s are Voldemort.   She lost this one big time, but she’ll be back.

This just might work.

If a guy with a gun can’t eliminate dogfighting, say its opponents, perhaps someone with a Bible can.

Monday, representatives of the Humane Society of the United States announced they enlisted some metro Atlanta ministers to preach against pit bull dogfighting. They’ll join law enforcement officers in trying to curb the illegal practice.

Florida State University opened up their season in a big way, announcing to the world they are returning as a major force in college football, thrashing the heretofore undefeated Western Carolina Catamounts, 69-0.

The Seminoles scored more points than any other Championship Subdivision team on Saturday. Their convincing win over the Southern Conference powerhouse of WCU prompted some pundits to say FSU will go undefeated this season, and claim the BCS National Championship.

“They looked great Saturday” said internationally respected analyst rugbyfan. “If you were to ask me, I would describe the Seminoles in one word, ‘unstoppable’. Wait, no, make that,’perfect’. Will they win the BCS? Does the sun rise in the east?”

Some other teams played this weekend but they are hopeless jokers and don’t deserve any attention.

Consider this: AN OPEN THREAD!

[Hey, what does this have to do with Georgia politics? If you have to ask, you will never know. And yes Erick I have already admonished myself for posting this.]

College Football is back at the end of this month.  It’s a good thing we had all these elections and scandals to give us something to talk about since January.  UGA starts the season with an official number 1 ranking from the coaches.   I like it better when we are underdogs.

The Pros are back as well, and we’re gearing up for another season of Peach Pundit Fantasy Football.  We’ve cut the number of teams back to 16, and at least 8 spots are already filled.  Sign up soon, regular posters, or you’ll miss out.   Follow This Link to sign up, (Create a Yahoo ID first if you don’t have one), And use League ID 19689, Password:  Snuggles

Thanks to Driving Buddha for getting this set up, and of course, to last year’s commissioner, Doug Deal.  (He seems to do something decent about once a year.  Now he’s got to go through his annual ritual of figuring out which five teams for which he’s going to claim to be a fan.)

If you’re a rabid fantasy player, this might not be the right group for you.  I found it a great way to learn the ropes of fantasy football last year, along with other similar non-professionals.  Think of it as fantasy football for the special olympics:  Even if you win, you and your competitors are still special.   It’s just a decent outlet for some fun when you need a distraction from the fall campaigns.

We’ll be setting up a college pick’em game again as well, with announcements made when that’s set up.

And if you need to ask what this has to do with Georgia Politics, you’ll just never get it.

Consider this an OPEN THREAD.

If anyone cared, Michael Vick has declared bankruptcy and says he is $10-$50 million dollars in debt. Here are the bankruptcy filings, from TMZ.com.

And, yes, I read TMZ.com daily. I shall now turn in my “guy” card at the door.

Smith says Smith hired by Birds.

The Atlanta Falcons are expected to select Jacksonville Jaguars defensive coordinator Mike Smith as their next head coach, according to league sources. An announcement could come as soon as Wednesday afternoon.

Looking at Google News, it appears a done deal.

Still, who?

Poor Bobby. I am sure $14.25 million will cheer you up. This season certainly showed you are worth much more than that.

Arthur Blank was too meddlesome with the Falcons and former coach Bobby Petrino’s family was “miserable in Atlanta.” Those are the latest salvos in the continuing fallout from Petrino’s sudden departure from Atlanta Falcons head coach to the head coach at Arkansas.

NB: For the UGA fans, see if UGA would benefit from a playoff here, I’ve run several different simulations and only once did they go to the semi-finals. But really, they are deserving to play for the title.

Also, the AJC has a gallery of GT’s year in Athletics. Highlights include a photo-op with last year’s ACC division title and a victory over 3-9 Notre Dame.

“I will redeem myself!” he says.

Let’s make this today’s open thread.

Update:From the ESPN article:

By 8 a.m. Monday, about 50 people were in line outside the courthouse waiting for the doors to open. About two dozen animal rights activists stood across the street holding posters showing injured pit bulls and the messages, “Report Dogfighters” and “Dogs Deserve Justice.”

“We want to make sure the focus on the animals in this case isn’t lost,” said Dan Shannon, spokesman for People for the Ethical Treatment of Animals.

Julia Novak arrived with her small beagle, Frankie, who wore a sandwich board with the message on one side: “Dogfighters use dogs like me for bait.”

Emphasis added. Uhhhh…what?

To paraphrase, commenter cheapseats asked Earl Ehrhart if he should be planning on buying his next boat in Alabama or another neighboring state if/when the GREAT plan passes, because Georgia sales taxes will go up 4%. Here’s Earl Ehrhart’s response:

Since we are not advocating any change in the state portion of the sales tax, then your tax will be the same in that year if this plan is successful.

Ok, Earl. Are you trying to be hyper-technical here or are you just flat out lying? If property taxes are eliminated in you and Glenn’s plan, sales taxes will be raised to make up the difference. But now you say you aren’t advocating any change in the state portion of the sales tax…but yesterday you said the language that you are polling mentions a 1% increase in the sales tax.

So what is it?

From a comment by Earl Ehrhart, responding to a question by Rusty about how the GREAT tax has been polled:

I will paraphrase the question which was similar to this:

]]> http://www.peachpundit.com/2007/10/03/how-dishonest-people-poll-tax-policy/feed/ 19 http://www.peachpundit.com/2007/09/04/whoopi-joins-the-view-defends-vick-insults-south/ http://www.peachpundit.com/2007/09/04/whoopi-joins-the-view-defends-vick-insults-south/#comments Tue, 04 Sep 2007 21:00:42 +0000 Buzz Brockway http://www.peachpundit.com/2007/09/04/whoppi-joins-the-view-defends-vick-insults-south/

According to Whoopi Goldberg, Michael Vick thought dog fighting was OK because he grew up in the South where it’s part of what we do down here. Sorry Whoopi, but as we say down here: that dog won’t hunt.

You’d be hard pressed to find someone South of the Mason-Dizin line who thinks killing dogs who don’t win a fight is acceptable, or a “southern thing.” I find her comment offensive, and no different from those who said dog fighting was a “black thing.”

Watch for yourself.

]]> http://www.peachpundit.com/2007/09/04/whoopi-joins-the-view-defends-vick-insults-south/feed/ 58 http://www.peachpundit.com/2007/08/24/michael-vick-aka-ookie/ http://www.peachpundit.com/2007/08/24/michael-vick-aka-ookie/#comments Fri, 24 Aug 2007 19:04:48 +0000 Buzz Brockway http://www.peachpundit.com/2007/08/24/michael-vick-aka-ookie/

Here’s Vick’s plea agreement (via the AJC).

It’s 22 pages and I haven’t read it in detail but it appears Vick has agreed to cooperate with other dog-fighting investigations and even testify in court. Prosecutors recommend minimum sentence and Vick could receive “downward departure” from the sentence (I suppose if the more he cooperates the less time he serves).

I’m sure there much more to the deal. Perhaps some of you legal beagles can enlighten us.

]]> http://www.peachpundit.com/2007/08/24/michael-vick-aka-ookie/feed/ 3 http://www.peachpundit.com/2007/08/24/the-law-firm-vick-should-have-hired/ http://www.peachpundit.com/2007/08/24/the-law-firm-vick-should-have-hired/#comments Fri, 24 Aug 2007 15:25:28 +0000 Buzz Brockway http://www.peachpundit.com/2007/08/24/the-law-firm-vick-should-have-hired/

WARNING: Curse words uttered.

Hat Tip: Banter in Atlanter

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Of course my ex-husband (a writer at some

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