Public Service Commissioner Tim Echols posted on Facebook this morning that the PSC redistricting bill had been dropped in the hopper and will force him to run for re-election this year, rather than in 2016. He has since deleted the post.

I looked at the bill and it does appear to force Echols (District 2) to run for re-election this year, rather than 2016, at the end of his term. Correspondence with the sponsors of the bill reveals no intention to change the election dates of any member. Rather than some conspiracy by State Senators against Echols, I suspect it’s just a drafting error by Legislative Counsel.  Here’s the section from SB 382 that is ruffling feathers:

(d) The first members of the commission elected under this Code section shall be elected thereto on the Tuesday next following the first Monday in November, 2000 2012, from Public Service Commission Districts 3 and 5, shall take office on the first day of January immediately following that election, and shall serve for terms of office of six years and until the election and qualification of their respective successors. Those members of the commission elected thereto on the Tuesday next following the first Monday in November, 2002 2014, from Public Service Commission Districts 1 and 4 shall take office on the first day of January immediately following that election and shall serve for terms of office of six years and until the election and qualification of their respective successors. The member of the commission elected thereto on the Tuesday next following the first Monday in November, 2004 2012, from Public Service Commission District 2 shall take office on the first day of January immediately following that election and shall serve for a term of office of six years and until the election and qualification of his or her respective successor.  All future successors to members of the commission whose terms of office are to expire shall be elected at the state-wide general election immediately preceding the expiration of such terms, shall take office on the first day of January immediately following that election, and shall serve for terms of office of six years.

I believe it would have been more prudent for Commissioner Echols to contact the sponsors of the bill, Sens. David Shafer and Charlie Bethel, first to make sure it was their intent to have him run again in 2012 rather than take his beef to Facebook and making accusations of members of the legislature conspiring against him.  There was a bill proposed last session that would have allowed the PSC to elect its own chairman rather than have the chairmanship rotate among the Commission’s members.  The bill was defeated, and Echols said this week in the Commission that the defeat of the bill amounted to a legislative vote of confidence in him being Chairman of the PSC.  He challenged the rest of the Commission to bring the bill up once again and said that he would get even more votes this year than he did last year.

His reaction to SB 382 via Facebook all but guarantees that the legislature will pass legislation to allow the Public Service Commission to elect it’s new Chairman.

Georgia might soon allow its spirit distillers to give away free samples to visitors.  The Union Recorder has an article about House Bill 514, sponsored by Rep. Rusty Kidd (I-Milledgeville), would allow samples to be given to visitors.  The bill stipulates that a visitor would be allowed 1 sample of no more than 1/2 of an ounce per calendar day.

The City of Fort Oglethorpe passed a similar tastings ordinance for beer and wine sampling back in early January.  The ordinance would allow for tap beer or wine samples with a limit of no more than 3 one ounce samples per day.  There’s some consternation from one of the city councilmen, Johnnie “Red” Smith.  He’s saying that he was “set up” by his colleagues in the meeting where quorum was barely met with 3 council members present and Councilman Smith was elected to preside over the meeting where the ordinance was passed.

HB 514 has been assigned to the Regulated Industries committee in the House.  We’ll see if this goes anywhere and ruffles any feathers as Sunday Sales did during the last session.

My father always says, “It’s not a bargain if you can’t afford it.” I believe that is the advice he might pass along to MARTA supporters.

MARTA has long desired more flexibility in its ability to determine how it will spend its funds. Currently, 50% of MARTA funds must be spent on capital improvements and 50% on operations. This is a fairly tight financial straitjacket, though it is a way to prevent subsidization of riders at the expense of abandoning necessary upkeep of the system.

There is a possibility that the ties on spending might be loosened in the draft legislation suggested by the Transit Governance Task Force. There are; however, strings as Maria Saporta writes in The Saporta Report:

To free MARTA from the state-imposed restriction that 50 percent of its revenues be spent on capital and 50 percent be spent on operations, MARTA basically would have to turn over most of its authorities to the newly-created Transit Governance Council. For the record, no other transit agency in the nation is saddled with such an unworkable rule.
MARTA represents a $6 billion investment in our region. Why should MARTA turn over its Constitutional powers to a state-controlled entity and give up its designation as the transit authority that can receive federal funding in the region.
According to folks close to MARTA, relaxing the 50/50 rule would give MARTA flexibility over how it spends its sales tax revenue (and it is expected that currently would be worth about $20 million a year for the transit agency.
It is inconceivable that MARTA could or should give up most of its powers and its $6 billion investment in return for getting flexibility in how it can spend the MARTA sales tax collected in the City of Atlanta, and Fulton and DeKalb counties.

And then there is the issue of the make-up of the Georgia Regional Transportation Authority (GRTA) which would be the body with the ultimate control of MARTA. The 15 members would all be appointed: 9 by the governor, 3 by the lieutenant governor and 3 by the state house speaker. It’s not as though petty, personal politics ever happens in Georgia, so what could possibly go wrong?

From the state’s perspective, things are different. One of the complaints about the state is that it has not contributed as much money to MARTA as is needed. It is a fact that state governments are reluctant to give up control of funds, but let’s take this a step farther.

If the state increases its control of the funds, then it has greatly increased its responsibility for MARTA. It can no longer stand at a distance and point fingers. It will be forced to have a hands-on, problem-solving approach and let’s face it, the state has many more resources at its disposal that it could employ to improve MARTA – if the price is right.

In this case, the price for the state of Georgia taking so much control of MARTA is inescapable political responsibility.

If one wants the state to “man up” and do the right thing by MARTA, then allowing the state to be responsible might be the right way to go. The next logical step would be for the state to increase its funding of MARTA to acceptable levels for a state that still lays claim to the title Empire State of the South.

Is this a bargain that MARTA can’t afford? Perhaps, after all, it is not. My father, actually a man of few words, might offer another bit of sage advice to MARTA supporters, “If you want a man’s help, then make your interests his interests.” Yeah, that bit of wisdom would certainly fit.

There is much more at The Saporta Report, so check it out to get additional information. This is not the only issue with the draft legislation that is discussed. You’re big boys and girls so you can wander over there and find your way back again. For the weary, here’s the link.

One would figure that when you pay a state fee for a specified purpose, the total sum of the fees collected would go towards taking care of that specified purpose.  GPB has a good example in their story about a proposed bill concerning these fees:

In 2010, Georgians paid $6.3 million in scrap tire management fees. The $1 fee paid on every new tire is meant to defray the cost of landfill cleanups.

But lawmakers didn’t use any of it for landfill cleanups that year. Instead, they redirected the fees to other budget needs as state revenues declined. That’s because the state of Georgia often collects fees but uses them for a different purpose. And it’s not required by law to only use a fee for the stated collection purpose.

Ah, we’re talking about state government after all.  So, a state fee levied to help off-set the costs of landfill cleanups isn’t really being used for that, but rather to fund other parts of government?  Makes perfect, logical sense, right?

House Bill 811, written by Rep. Jay Powell (R-171st District), would change that practice by requiring the fees to be automatically reduced proportionally each year if the fees collected were not being used for the purpose specified:

Todd Edwards with the Association of County Commissioners of Georgia says it takes a less restrictive approach than past bills.

“It wouldn’t bind the legislators to put it in a fund that they couldn’t reach for other purposes. In fact, it doesn’t bind them in any way at all,” Edwards says. “It simply dictates that if you’re not spending the fees as they’re supposed to be spent, then the fees will be reduced proportionally from that point going forward.”

Initially, it will affect a handful of fees levied by the state, but legislators could add additional fees if the bill becomes law.

In today’s morning reads, I noted a Tax Foundation study on the state business climates. Mike Klein notes over at the Georgia Public Policy Foundation that Georgia comes in at a depressing ranking, 37th overall. Klein contends that this a sign that Georgia needs a tax code overhaul to make it more attractive to businesses and industries.

He’s absolutely right. But there is there is a right way and a wrong way to go about it. Many states have resorted to offering up tax credits for various industries as a way to bring business to their economies. Georgia is no different. Many legislators have pointed to the boom in filming in the state thanks to tax credits, often citing AMC’s popular show, The Walking Dead, as an example of their success.

State Rep. Ron Stephens, who has apparently never met a tax credit he didn’t like, is pushing now for similar treatment for the music industry (I can’t find a story on it, but heard the story on WSB Radio during my drive into work this morning). He believes that by providing incentives to the industry that Atlanta could become the “new Nashville.”

My wife is involved in the local music scene, booking shows for bands that come through the area, and I played in a band for six years. I’ll catch the occasional local show with her, whether it’s one she has booked or to see an act that I like. So I’m sympathetic to the idea of seeing Atlanta’s influence grow in the music industry. But if you want to make Georgia’s economy more competitive, the last thing you should be doing is picking what industries are going to be winners and losers by distorting the market with tax credits, which is ostensibly an admission that we don’t already have a business friendly climate.

The legislature should, as Klein so rightly explains, focus on a tax structure that make any industry or business considering relocation believe that they can come to Georgia and prosper. This is the difference in being “pro-market” and “pro-business,” a distinction many legislators don’t seem to understand.

Yesterday, Charlie, Mike, and I sat down for a candid discussion with Senate Majority Leader Chip Rogers (R-Woodstock) about some of the issues that he and his caucus are pushing this session.

While this was an opportunity for Sen. Rogers to relay his agenda, the discussion was very direct, yet friendly. Given that this was our first meeting, it was more of an introduction; a chance for us to have a better understanding of the Senate’s perspective on major issues facing the state in 2012 and on.

Some of the issues brought up during our discussion are familiar. Sen. Rogers told us that his Taxpayer Protection Act and zero-based budgeting are again working through the legislature and seem likely to pass.

Given the news about education and scandals in school systems in recent months, Sen. Rogers expressed support for a constitutional amendment protecting charter schools. He indicated that support existed inside his caucus to move the amendment, which is needed to fix a incredibly misguided decision by the state Supreme Court, but noted that it faced an uncertain future in the House.

Sen. Rogers also noted his support for bringing education into the 21st Century by paving the way for money online classrooms and using e-readers to save money on textbooks. These may not be things the legislature takes up this year, but Sen. Rogers indicated that Georgia has to think outside-the-box in order to use taxpayer dollars more wisely.

He also noted that some technical corrections may be needed on last year’s anti-immigration bill (HB 87), but that it wouldn’t be a broad overhaul, despite worker shortages in South Georgia. Sen. Rogers also acknowledged that the T-SPLOST faces hurdles due as voters in Metro Atlanta counties feel that they won’t receive much benefit from it as it spends too much on transit and not enough on roads. Sen. Rogers noted that a mistake was made in putting 10 years of funding into a permanent cost structure.

For our part, we expressed a desire to see real ethics reform passed by the legislature. We also noted that we felt that mixed messages were being sent by the Governor’s office and the legislature, assuming they go along, with the $400 million earmark for a new stadium for the Atlanta Falcons (an issue you’ll be hearing more about in the coming days) and priorities on other issues, such as transportation. Sen. Rogers had open mind on these and other issues that we brought up, but noted that the politics surrounding them — particularly on ethics reform — are difficult to cut through.

It seems as though we will have an on-going, open dialogue with Sen. Rogers, and ostensibly the Senate Republican caucus. We will continue to meet with him during the course of the session so we can provide our readers with up-to-date, exclusive information.

I heard this morning that Lieutenant Governor Casey Cagle is on his way back to getting power, and now Jim Galloway is reporting that Governor Nathan Deal has brokered a peace treaty between President Pro-Tem Tommie Williams, Majority Leader Chip Rogers, and Lt. Gov. Cagle.  A vote of no-confidence was to be held today, but both Sens. Williams and Rogers went to Governor Deal to intervene (a breach in the separation of powers, perhaps??) in the matter.  What resulted was a meeting between Cagle, Williams, Rogers, Sen. Ronnie Chance, and Sen. Don Balfour and apparently an agreement was worked out:

Cagle would chair a reconfigured five-member committee on assignments. The lieutenant governor would also have two appointments to that committee. Williams and Rogers would hold seats as well.

However, an agreement was reached that the committee would make no changes in the current chairmanship roster. Caucus elections this fall, after the November general election, would settle the matter.

Also, William and Rogers were guaranteed seats on this session’s budget conference committees.

Perhaps this peace treaty will keep everyone peachy through the remaining 38 days of the legislative session.  Maybe the war will end and the senate can get back to work on legislation rather than engaging in political in-fighting.  We’ll see, but speculation would be that changes are coming in the fall.  Stay tuned.

::UPDATE::

Nevermind, the proposal has been rejected by the Senate GOP Caucus according to Todd.

At an event the other night, the Governor opened the floor to questions and someone asked him about repealing the sales tax on energy used in manufacturing. The Gov. said that the “cost” of the tax cut was roughly $170 million, but that he thought they could identify enough savings to make it feasible.

“I read that we’ve lost $1 billion worth of jobs,” asked the gentleman who offered the original question. “Don’t we make enough in taxes on those jobs to pay for the tax cut.” That sounds like a no brainer but it’s a bit more complicated than that.

“Dynamic scoring” is a budgetary concept over which Congress has been fighting for years. Dynamic scoring includes changes in behavior that are expected from proposed tax cuts. For example, if we exempt the sales tax on Porsche automobiles, we expect more to be sold, and we might anticipate additional income tax from new salesroom jobs.

So in the example of the sales tax on energy used in manufacturing, a dynamic scoring model would include additional income tax revenues from jobs attracted to Georgia, or less income tax lost to jobs moving to other states.

But Georgia uses a static model for budgeting that doesn’t account for anticipated changes that ramify from tax cuts. So we must find a way to “pay for” tax cuts in a down economy like we currently experience.

I recognize that we may have gotten into the weeds on a technical budgeting issue, but I hope there are enough policy wonks among our readership that this little segment was worth producing.

Dear Yankee Pundits (And you know who y’all are), Please accept my humble apologies. I was wrong and will make a real apology. A real apology restates the offense without any euphemisms or diminishing comments or excuses. Here is my offense. A mere two days ago, in“Romney’s Southern Problem: The “M” Word”, I wrote this:

I can see Romney winning Iowa or at least finishing second in Iowa. He should win his neighboring state of New Hampshire; anything else would be a major upset. As for South Carolina – listen to me, well-meaning Yankee pundits – it’s not going to happen. It’s the “M” word.
What? “Mormon”? No, get real; you guys are far too quick to project your prejudices on others. There are members of the Church of Latter Day Saints all through the South and while they may not be ultra-active in politics, they are viewed as being good people and good neighbors. They are walking examples of the “family values” that the Republican Party endorses so heartily. Mitt Romney’s “M” word problem is Massachusetts.

I still stand by the vast majority of that statement: Romney’s projected finishes and the likelihood that non-Southerners project bizarre things upon us with little or no evidence and that Mitt Romney’s real problems are the ramifications of his successful Massachusetts elections. I can no longer honestly say; however, that Governor Romney’s religion is not an issue in the South.

A real apology also states why the statement or action was wrong. In this case, my friend and a fine writer, Jason Pye made a post on Peach Pundit entitled, “Judy Manning is ‘afraid’ of Mormons”this morning. The content of Jason’s piece means I cannot continue to issue a blanket denial that religion is not an issue in the South.

Jason’s piece was based upon this story in the Marietta Daily Journal, “Lawmakers sound off on ’12 hopefuls“. You see, Judy Manning is an elected Georgia state representative from Marietta, the county seat of Cobb County. She was interviewed because she has endorsed former US House Speaker Newt Gingrich.

Before I go farther down this road, let me add that you cannot blame Gingrich for Manning’s statements. That’s only one click off of judging Romney solely on his personal religious beliefs.

I don’t know Representative Manning. She may well be a skilled lawmaker and a wonderful person, but she needs to think before she speaks. Perhaps she really fears members of the Church of Latter Day Saints. If she does, perhaps she deserves our sympathy.

Manning is no political neophyte. She is a 12-year veteran of the state legislature and holds an undergraduate degree in education and a graduate degree in business. Her legislative profile describes her as “a devout Presbyterian” and I point that out because if I don’t some people will make assumptions and attribute the statement to a Southern Baptist. It wasn’t us, okay?

I figure if one of our elected officials is responsible for that statement then I can’t blame it on “some crank” and so I might as well own up to it. I refer to myself: Ken Carroll’s First Law of Politics: Never Defend the Indefensible.

The JudyManning.com website has been suspended, though I do not know when that happened. I am hoping that Representative Manning has a credible explanation for her statement and whether she does or not, I hope she issues an honest apology. It was a dumb thing to say. Period.

Mitt Romney is neither my first nor second choice for the GOP nomination. I have concerns with his commitment to conservative beliefs and that he will not aggressively move to reduce the size and the scope of the federal government. Would I eliminate him from consideration because he is a Mormon? No, because to do so would be stupid.

The saddest thing is that I thought we were better than this. I really did.

The Legislature added a new member tonight as Dustin Hightower defeated Alan Martinez in the House District 68 runoff. Final results here.

Welcome aboard Mr. Hightower.

It’s a nasty political fight with no-holds barred and kicking, biting, gouging and low blows galore – and no Democrats are involved. It’s the battle for control of the Georgia Senate. Following the national example, Georgia Republicans formed a circular firing squad last year and commenced firing and never slackened until the session was over.

Georgia Lt. Governor Casey Cagle - Image via Wikipedia

The past few peaceful months for the combatants have been spent re-loading and apparently preparing for further embarrassment in 2012. One indicator is that the sales of red rubber noses, big floppy shoes and frizzy orange wigs have skyrocketed. When the Georgia Senate convenes with Lt. Governor Cagle as its nominal head, the appropriate theme music will be Send in the Clowns.

The only thing protecting Cagle and various Georgia Senators is the relative lack of attention paid by Georgia citizens and the fact that most Georgians neither know nor care who these people are. If the people of this state stop long enough to study the sorry mess that calls itself a legislative body then all bets are off in the local and state elections.

While The Columbus Leger-Enquirer has an excellent interview with Georgia Lt. Governor Casey Cagle, touching on many subjects of interest, the real news is not in the headline. The real news is Cagle’s take on the continuing power struggle between himself and the majority of the Georgia Senate. From the story:

The Senate will continue to operate under a leadership structure implemented last session that forces Cagle to share power with other GOP leaders, but Cagle maintains that he is still head of the chamber.

“The leader in the Senate is the lieutenant governor,” said Cagle, who is still in charge of day-to-day operations, but no longer has the power to appoint committee chairs. “Last year illustrated that chaos occurs in the absence of leadership, and we really didn’t have leadership last year. This year is going to be very, very different. We’re going to be far more engaged and far more active because, quite candidly, the experiment last year was not successful.”

Cagle said the current leadership structure is hurting the Senate, and pointed out that no major legislation originated in the Senate last year. He said the issue is not about him, but about preserving the institution.

The amazing thing about this quote is that Cagle publicly proclaims himself to be “the leader”  and then bemoans the lack of leadership. Let me sort out the confusion here: There is a difference between holding a position that has some authority and being a leader. Cagle has the position, but I’m awaiting a sign of leadership. Frankly, I’m not sure Casey Cagle could lead a group of sailors onto the campus of an all-women’s college after six months at sea.

While voters may not pay much attention now, a continued lack of accomplishment will draw the interest of voters. If Governor Nathan Deal or even members of the other legislative body are forced to get involved, then the press cannot ignore the continued Senate stalemate. This would be good news for Georgia’s citizenry whose legislature is being held hostage by egos, childish grudges and an addiction to power.

The struggle has even spread outside the Georgia Capitol building in the form of special election battles. It appears the two sides are using candidates as proxies in their ongoing struggle for potential supporters by funneling funds and support to different campaigns. From here, it looks as though the balance of power remains just where it was at the end of last year’s legislative session.

I don’t know if Lt. Governor Cagle has figured this out or not, but in ’14 he is at a disadvantage. Incumbent state senators are much better known to their individual constituencies than is the Lt. Governor. If he attempts to interfere in their races, he would likely be unsuccessful and lose political power and influence. On the other hand, the collective endorsements by a large group of state senators would carry much more influence. When it comes to the ballot box, this is not an even fight.

Let me make a modest recommendation: If these two groups are serious about making the Georgia Senate work, then they should get together, reach an agreement and hold a press conference that outlines the agreement. I will be happy if this happens, but on the bright side, if it fails I will have a lot to write about.

Do you think Dr. Phil does legislatures?

Actor James Earl Jones, who voiced Darth Shafer Vader in the Star Wars movies, was on hand in Poughkeepsie, New York, to swear in longtime friend Adrian “Butch” Anderson as Sheriff of Dutchess County. This is the beginning of Anderson’s fourth term as Sheriff.

Since legitimate questions have been raised about whether a certain alleged State Representative was sworn in during last year’s “Snowpocalypse,” who should preside over the actual swearing in, if it ever occurs? I was thinking C3PO. And if that alleged State Rep. were to place one hand on the Bible and raise the other hand, who would twittercast it? And if it’s not live on Twitter, it never happened.

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.

2011 is starting to wind down which means that the 2012 elections will begin to heat up.  I decided to peer into the proverbial crystal ball locked away in the Peach Pundit command center and see what sort of things I could prognosticate.  I hope you enjoy these…I might even revisit these at the end of next year to see how off-target I was.  Feel free to share your own predictions in the comments.

Nathan’s 2012 Predictions:

Georgia Politics:

• Senator Chip Rogers out as majority leader in the state senate.  Senate GOP caucus replaces Sen. Rogers with someone who would still be considered “anti-Cagle”, but would be willing to establish a peace with the Lieutenant Governor and granting some power back to Lt. Gov. Casey Cagle.  Some order is back in the state senate, but still dysfunctional.
• With the state senate still in disarray, the state house becomes the more powerful chamber.
• The Georgia economy continues to lag in 2012, so paramutual betting and casinos get a more serious look from the legislature.  Governor Deal will still continue to publicly denounce the idea, but he might allow for a serious look through different channels behind the scenes.
• The Republicans are able to win a super-majority in the state house, but misses it in the state senate.
• Georgia’s Congressional Districts:

• Dispite a large backing of the Tea Party of Martha Zoller, Rep. Doug Collins becomes the new gentleman from Georgia’s Hall County-centered 9th Congressional District.
• Congressman John Barrow is defeated in the 12th district and Georgia becomes a 10-4 GOP Congressional delegation.

National Politics:

• Newt does something to falter and loses Iowa to Ron Paul.  Ron Paul makes a good showing in New Hampshire, but loses to Romney.  Romney takes South Carolina to build enough momentum to head into Super Tuesday.
• Rick Santorum does something shocking and wins a primary state…maybe even Florida.
• Santorum, Bachmann, Perry, and Huntsman drop out of race after Super Tuesday.
• “Romney is the inevitable” advocates are right.  Newt isn’t able to hold on to the momentum and voters are turned-off to Ron Paul due to differences in foreign policy.  Romney becomes GOP nominee and possibly picks Gov. Nikki Hailey or Gov. Bobby Jindal as his running-mate.
• Newt wins plurality in Georgia, Romney is 2nd, followed by Cain in 3rd place dispite his campaign “suspension”.
• Newt drops out of presidential run and endorses Romney.  He might even get a cabinent-level position in exchange of support.
• Republicans hold on to large majority in the US House.  Scott Brown loses senate race in MA, but Republicans will get a slight majority in the US Senate…around 52 or 53 seats.  Despite having a majority in both chambers, Democrats will still hold up legislation via filibuster.
• Republicans are able to defeat President Barack Obama to win back the White House, but only barely.

One last general prediction: World doesn’t end due to the lapse of the Mayan calendar.  The Snowpocalypse might get us, but the Mayans can’t take us down.

First let me say that I encourage my friends on the left and middle, as well as fellow conservatives to critique this list – and hopefully add to it. The state legislature will convene in a few days, and I’m sure they are all waiting breathlessly to know what we citizens want. What do you really want? Please share your ideas.

Dear Georgia Legislature, The citizens of the state, with a few exceptions. have been good this year and so they deserve some consideration. Here is my Christmas wish list for the state of Georgia. I hope you’ll look at it carefully.

Georgia Capitol Building - Image via Wikipedia

1. The state needs to give individual counties the flexibility to increase the limit on local option sales taxes subject to the same current restrictions (other than the overall cap) but limit that authority to the next five years with tax receipts to go into the local government’s general fund. Some poor, rural counties may need this to remain financially viable in this economy. I don’t like increasing taxes, so if there is a better way, I’ll certainly accept it.

2 – EVERY department at the state level needs to implement zero-based budgeting.

3 – Stop thinking about education in its present form. Look for alternatives that work whether they are within the current framework or not. Look at eliminating grade-levels so that students can work at different levels within each subject matter without regard to age. Grade levels stifle students in their best subjects and bewilder them in the areas in which they struggle. Could you please pass legislation making it possible to fix this?

4 – The most independent, politically neutral ethics commission possible should be established. There is a great motivation for this: The majority today may not be the majority tomorrow and this commission must be established in a way that no one can manipulate it for political gain and so that it is effective, consistent and renders the closest thing to justice available in this world.

5 – Commission a committee to study the state government, focusing on duplication of services and resources and make recommendations on reducing the cost of state government. Think of it as Georgia’s Grace Commission.

a – Put people on the committee from varied industries and backgrounds such as financial, manufacturing, agricultural, academic, logistics, health, medical, legal and all levels of government. Put the best and brightest forward, not necessarily the most politically connected. Set up a liaison with the Georgia Congressional delegation to obtain any necessary federal information.

b – Give that committee the keys to get any and all information from any state official and agency that can be legally obtained.

c – Make public all recommendations without interference from any elected officials. Establish a website to receive suggestions from citizens. Divert any suggestions for local and county governments to another website and make them available to the public, as well.

6 – Increase the penalties for the commission of voter fraud in state and local elections.

7 – Hey state senators and Lt Governor Cagle! Pay attention. The country is in a financial mess and state unemployment is at an unacceptable level, meanwhile you’re in a contest to see who’s the most juvenile. This is unacceptable. I have my own beliefs on who is mostly responsible for this, but it no longer matters. Fix it or it’s going to get really ugly and you may not get your fondest wishes in the coming years.

8 – Is there an organization that seeks out “best practices” from other state governments and reviews those practices to see if they will help Georgia? If not, isn’t it time to do so?

9 – I remember hearing you were going to review and improve the state tax structure. How about it?

10 – When Austin Scott was campaigning for governor, he suggested a state-wide grand jury to handle some matters that seem to fall in the cracks. It’s still a good idea, so how about looking into that?

Merry Christmas!

Any other wishes?

It’s Christmastime, and the Georgia General Assembly will be going into their 2nd session in a couple of weeks.  What sort of business would you like to see the General Assembly take up once the session is gavelled in?  Discuss it in the comments.

I know my wish is that the state senate will get things in order in their chamber.

Is Georgia’s indigent defense system broken? The answer may come after next Thursday, when the case of Maurice Flournoy, et al. v. The State of Georgia, et al. goes to trial in the Superior Court of Fulton County. Flournoy is significant because the case has been brought as a class action lawsuit challenging the effectiveness Georgia’s Public Defender system.

The case combines the claims of over 200 defendants who were convicted at trial. Many of you will stop reading at this point, don’t take your thinking hat off just yet. Many of these defendants hit a brick wall when appealing the convictions–you have to get a new lawyer to argue ineffective assistance of counsel. These aren’t white collar criminals. They are indigent from the start. There is no option of going out and retaining a lawyer for the appeals process. It falls to the Public Defenders to handle the appeals process. And because the “ineffective” lawyer argument requires one to use a different lawyer, the appealing defendant gets handed off to another Public Defender.

Therein lies the problem at the heart of this case. The system is understaffed and underfunded. And by no fault of the Public Defender system. A few years ago, the Georgia legislature created the Georgia Public Defender Standards Council, or GPDSC, to function as an agency to oversee the administration of the various Public Defender offices. But the agency has never been adequately funded and in recent years has faced severe budget cuts. The state has statutorily obligated the GPDSC to aid indigent defendants in this position, yet they refuse to provide the necessary funding. It’s like a giant game of hide the ball; it’s easy to win when you have the ball.

If you are going to create a system, then fund it. Press Release below the fold.

Trial Seeks Permanent Fix to Broken System for
Providing Hundreds of Indigent Persons Lawyers

WHAT: Superior Court Judge Jerry W. Baxter will hold a trial in Maurice Flournoy, et al. v. The State of Georgia, et al., a class-action lawsuit that seeks to secure adequate representation for indigent persons in Georgia who have been convicted of offenses carrying a term of incarceration and who are currently without effective legal representation.

WHEN: Thursday, December 15, 2011 at 9:30 am.

WHERE: Fulton County Superior Court, 185 Central Avenue, SW; Justice Center Tower Suite T-4855/Courtroom 4D; Atlanta, Georgia 30303

WHY: Flournoy was filed in December 2009 on behalf of nearly 200 convicted indigent defendants who did not have lawyers to represent them in their appeals. Many of these individuals could not be represented by their trial lawyer on appeal because they wished to raise claims of ineffective assistance of counsel and, under Georgia law, are entitled to a new lawyer to do so. Severe budget cuts in the past three years have rendered the Georgia Public Defender Standards Council (GPDSC) inadequately staffed and funded to meet its constitutional and statutory obligation to provide effective counsel to indigent defendants in this position.

On February 23, 2010, Judge Baxter certified a class of indigent defendants in Georgia who had been convicted of an offense carrying a term of incarceration and who had requested or would request, yet be denied, conflict-free counsel to represent them in their appeals. The Court also required the State to provide effective and conflict-free representation for appeals to all class members within 30 days of their request for new counsel.

Since the filing of the lawsuit, the class size has grown from nearly 200 to more than 800 indigent defendants, but the resources dedicated to their representation have not kept pace. As a result, the State has created an unacceptable risk that the right of hundreds of indigent defendants across the state to effective and conflict-free counsel will be violated.

In December 2011, lawyers from the Southern Center for Human Rights (SCHR) and Bondurant, Mixson and Elmore, LLP will argue that the State must make critical systemic improvements to ensure that the rights of indigent defendants are adequately protected, including the provision of counsel with sufficient time and resources to provide effective representation.

CONTACT: Kathryn Hamoudah, 404/688-1202 office, 404/819-4233 cell, khamoudah@schr.org

I’ve been living under a rock for the better part of almost a week and a half.  Now I’m back in the saddle getting caught up on emails and other various items around the office at work as well as politically.  We’re just a few weeks away from the start of the 2nd session of the General Assembly, so I’m sure there will be plenty of fun to be had then.  Legislation is starting to trickle in via pre-files, but I haven’t seen anything too monumental so far (if you believe otherwise, point out your favorite pieces of pre-filed legislation in the comments).

The General Assembly session, presidential nomination and subsequent race, the war drums for/against  TSPLOST…we might want to enjoy as much rest as we can for the next few weeks.  It looks like 2012 might be a pretty fun year for us political junkies.

Hope everyone had a happy thanksgiving.

The Georgia Senate has been fairly quiet for the past few months, but January is only a couple of months away. The Senate will have a slightly different make-up. The 1st session ended in a deadlock where the Senate GOP Caucus was basically split into Pro-Cagle and Anti-Cagle factions. That could potentially change in a few days when voters in the 50th senate district elect a new senator to fill the balance of Sen. Jim Butterworth’s term as well as Sen. Mitch Seabaugh’s now-vacated seat in the 28th district.

Battle lines are being drawn between Rep. Rick Austin, who is known for bucking GOP leadership and would probably do the same in the senate, and John Wilkinson, who is an apparent Pro-Cagle candidate. I’m sure Lt. Gov. Cagle and his allies are looking to hold on to the stalemate (and even shift the balance of power in favor of the LG since Sen. Mitch Seabaugh has left as well) in the senate.

Come January, we’ll see a power-shift in the senate either towards the LG and his allies or towards Sen. Chip Rogers and his allies or just a repeat of the 2011 session. It could be the “Fight of the Century”…or not. Have your popcorn ready!