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Unofficial Opinion 92-17

Unofficial Opinion 92-17

October 30, 1992
To: 

Representative, District 9

This is in response to your letter concerning the selection of the Speaker of the House of Representatives.  Specifically, you have asked whether the Democratic Party Rules of Caucus are legally binding on its members when the House membership elects its Speaker from among its members pursuant to Art. III, Sec. III, Para. IV of the Georgia Constitution.

In dealing with the selection of party leadership and the officers of the House, the Democratic Party Rules of Caucus state: "Participation in a caucus shall be voluntary and any member who votes in the election for nominee for Speaker of the House shall be honor bound to vote for the person elected as such nominee at the time of the election of the Speaker of the House of Representatives and shall not be a candidate for Speaker of the House at the time of the election of the Speaker . . ." Rules of Caucus (as amended in 1975), Item 3, P 3.

 [*2]  The first issue I must resolve is whether you have asked a political question or one that is legal in nature.  In my judgment, you have raised a legal question.  It is clear that the General Assembly must act in accordance with the authority and constraints provided in Article III of the Georgia Constitution.  Unlike many states that simply leave the selection of the speaker or presiding officer to the internal rules of each respective house, the Georgia Constitution contains a specific provision.  "The presiding officer of the House of Representatives shall be styled the Speaker of the Representatives from among its members." Art. III, Sec. III, Para. IV.  Because the Constitution gives the authority to the collective membership of the House, the question you have posed is not one concerning an internal matter that is traditionally left to the General Assembly.  Compare Murphy v. American Civil Liberties Union of Georgia, 253 Ga. 637 (1988) (courts do not have the power to regulate or enforce the internal rules of the General Assembly as to whether certain meetings must be open to the public).

It is well accepted that the General Assembly cannot relieve itself of a constitutional [*3]  responsibility by delegating authority to another body.  Bohannon v. Duncan, 185 Ga. 840, 842-43 (1938). Thus, your question can also be framed as to whether individual members of the House may legally delegate their duty to elect a speaker to the prevailing party caucus which requires its members to be honor bound to follow the vote of the caucus majority.  A procedure that effectively binds members appears to violate the principle that no member of a legislative body may be restrained from exercising an unrestricted power given to its members by the Constitution.  Village of North Atlanta v. Cook, 219 Ga. 316 (1963) (members of a delegation cannot be limited in exercising their power to introduce legislation even when a majority of voters indicate a contrary preference).

Most importantly, Art. I, Sec. II, Para. I of the Georgia Constitution provides in pertinent part as follows: "Public officers are the trustees and servants of the people and are at all times amenable to them." I am convinced the Constitution did not intend the selection of speaker to be made at a party caucus meeting.  This conclusion is consistent with Mason's Manual of Legislative Procedure,  [*4]  a leading authority published in cooperation with the National Conference of State Legislatures.  Mason states as a rule governing voting: "The decision of a deliberative body can be made only by taking a vote at a meeting.  The fact that members have individually expressed their opinions on a question is not a decision of the body and is of no effect." Sec. 520 (1) (1989 Ed.).

While the Rules of Caucus, as amended in 1975, require its members to be "honor bound" to vote for the person selected by the caucus, the Georgia Constitution requires that a member vote for what he or she believes to be in the best interests of the people.  See, Ga. Const. Art. I, Sec. II, Para. I.  Therefore, it is my unofficial opinion that when the membership of the House elects its speaker, the House members are not legally bound by the Democratic Party Caucus Rules to vote for the nominee of the Caucus.

Issued this 30th day of October, 1992.

Prepared by:

STEPHANIE B. MANIS,

Deputy Attorney General